That's a straw man argument on C.J. George's part--no one argues that same-sex marriage is a fundamental constitutional right, but should be denied anyway due to tradition. The argument is that there is no fundamental constitutional right to same-sex marriage, which is certainly correct under the federal Constitution and is probably also correct under the California Constitution without an amendment. I don't find it persuasive to say that a same-sex marriage is identical to a heterosexual marriage for the purpose of the constitutional right, given the purpose of state-sanctioned marriage.

George is on much better ground in the claim that giving the same package of rights to both types of couple but calling it different things is an Equal Protection violation. In finding a fundamental right to same-sex marriage, the court probably went too far.

(Not to say that I don't think there should be same-sex marriage, but it's a legislative decision, not a judicial decision.)