06/27/2009 05:12 am ET | Updated May 25, 2011

Lessig: To Overturn Prop 8, Avoid the Courts

California's Supreme Court upheld today Proposition 8, which bans same sex marriage. At the same time, the Court recognized those same sex marriages performed before the ban was approved. So, the unions of some 18,000 gay and lesbian couples from last summer are legal, but if you're gay or lesbian and want to take vows with your partner this summer, forget it. That would be illegal.

Talk about a mess. What was the Court thinking? It's bad enough that gay and lesbian couples are treated as a different class of citizenry. Now, there are effectively two classes within that class. To call it a compromise is a cop-out. A form of separate but equal is more like it.

And what does this situation say about our democracy? What have our courts come to if civil rights are determined by popular vote?

Ever prescient, Stanford Professor Larry Lessig argued months ago that turning to the judiciary to defeat Proposition 8 would be folly. I am sorry to say he was correct.

Watch the full program and a series about same sex marriage at