VERY FEW INDEPENDENT legal observers were surprised by the state Supreme Court's ruling last week on same-sex marriages. As a technical matter of narrowly defined law, it's easy to argue that the court was correct: the mayor of San Francisco doesn't have the authority to unilaterally overrule laws he doesn't like. As the majority opinion noted, a mayor who didn't believe in, say, domestic partnership rights or the state's assault-weapons regulations could use the same argument to take an action that most of Mayor Gavin Newsom's supporters would find horrifying.

By that standard, what the mayor really did in those wonderful months this spring, as we pointed out at the time (see "Civic Disobedience," 3/17/04), was to commit a bold and precedent-setting act of nonviolent municipal civil disobedience. His move was another step in the grand tradition of civil rights activists dating back to the days of Rosa Parks – and like others who defied discriminatory laws, he put the issue directly on the front burner of U.S. political consciousness, where it's going to remain. In a few years – and we suspect it will be very few years – same-sex marriage will be a fact of life everywhere in the nation, and the mayor of San Francisco will have helped make it happen.

Still, the court decision was a bitter disappointment – and a sign of how far the California Supreme Court has fallen from its one-time role as a leading voice for social progress. Under late chief justice Rose Bird, the court recognized that law is political, and that high courts are often the only forum for advancing the rights of minorities in a majority-rule society and good causes that don't have the political clout to win in the legislature. In those days the court ruled that free speech is more important than private property, that workers have a fundamental right to organize, and that the death penalty isn't something to be enforced without the highest level of scrutiny. Rulings that came out of California helped set the progressive legal agenda nationwide.

But since Bird and two of her liberal colleagues, Joseph Grodin and Cruz Reynoso, were summarily thrown out of office (in a campaign led by big-business interests), the court has been sliding backward. This decision was a sign of the court's failure to take civil rights seriously.

Put simply, the court ducked the real issue here, ruling only on the relatively tiny question of whether Newsom exceeded his legal authority in asking the city clerk to issue marriage licenses to same-sex couples. The court specifically declined to address the issue of whether same-sex couples have a fundamental, constitutional right to marry; that, the justices claimed, wasn't the question before the court.

Sure – that's true, in a very technical sense. But anyone with any common sense (and common sense is at the heart of many of the nation's most important court rulings) knew exactly what this case was about: the basic human right of all people to share in the benefits of marriage. And if the justices had any courage at all, they would have found a way to rule affirmatively, the way the high court in Massachusetts did, that it's illegal to discriminate against gay and lesbian people.

Instead, the court put off the question – and in a gratuitous and mean-spirited slap at the more than 4,000 people who got married in San Francisco, it declared those unions null and void. That wasn't just wrong but utterly unnecessary: as Justice Joyce Kennard pointed out in her dissent on this aspect of the ruling, the legality of same-sex marriage is at the very least unclear right now in California, with another city case working its way through the courts, and there was no compelling reason not to let those marriages remain intact until the final word comes down.

For now, Sups. Tom Ammiano and Bevan Dufty are pushing legislation that would automatically grant domestic-partner status to all the same-sex couples who got married, and the supervisors should pass that. City Attorney Dennis Herrera is pursuing a legal challenge on the civil rights issue, and the supervisors and the mayor should make sure that case is fully funded.

And in the next election for governor, Californians ought to be asking the candidates a direct question: are you going to appoint Supreme Court justices who will restore California's leading role as a progressive legal voice in the United States?