Appeals court upholds California law banning same-sex marriage

Both sides of historic legal battle vow to press on; challenges to ruling planned

San Francisco leaders and gay rights advocates said they were disappointed but not deterred by a Court of Appeal ruling Thursday that upheld state laws limiting marriage to heterosexual couples.

The 2-1 decision reversed a March 2005 trial court ruling that said denying marriage to same-sex couples violates their constitutional right to equal protection.

Mayor Gavin Newsom, who sparked a firestorm of controversy when he authorized marriage licenses for gay couples in February 2004, said the ruling was an “emotional setback,” but not a legal one.

The City plans to submit the case to the California Supreme Court for review, City Attorney Dennis Herrera said.

“Today is merely a disappointing second round in what we’ve always known will be a three-round fight,” Herrera said.

The appellate court hearing, held in July of this year before a three-justice panel, focused predominantly on the constitutionality of California’s heterosexual-only marriage laws.

The two conservative groups that filed lawsuits to oppose San Francisco’s efforts to extend marriage to same-sex couples celebrated Thursday’s appellate court ruling. The groups argued in court that a state law approved by voters through the passage of Proposition 22 in 2000 reflects a desire by the state’s citizens to limit marriage to a union between a man and a woman only.

Some decisions belong in the hands of the courts, not the general population, Newsom said at a press conference Thursday. He noted that in 1967, when laws were overturned banning interracial marriages, 70 percent of Americans disagreed with the court’s ruling.

“We would have never had interracial marriage,” Newsom said. “It doesn’t belong in the hands of the majority.”

Thursday’s ruling reflected a divided panel, with two justices ruling against giving same-sex couples the right to marry and one arguing to expand the definition of marriage to encompass same-sex unions.

“The respondents in these appeals are asking the court to recognize a new right,” the two justices wrote in their majority ruling. “Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage.”

The appellate justices acknowledged that “the time may come when California chooses to expand the definition of marriage to encompass same-sex unions,” but deferred the power to make that change to “democratic processes … not by judicial fiat.”

Assemblyman Mark Leno, D-San Francisco, who passed a bill through the legislature in support of gay marriage last year that was vetoed by Gov. Arnold Schwarzenegger, said he plans to resubmit the measure.

“It’s very clear, whoever is governor next year … will have a directive from the courts to sign it,” Leno said.

If the state Supreme Court accepts the case, the issue of same-sex marriage will be heard again as early as next year, Herrera said.

Randy Thomasson, founder of the Campaign for California Families, one of the two organizations that filed lawsuits opposing gay marriages, told his group’s supporters in a prepared statement that Thursday’s ruling “may be a short-lived victory.” Thomasson is leading a ballot initiative effort to include the definition of marriage as only between a man and a woman in the state’s Constitution. The group is calling it “The Voters’ Right to Protect Marriage Initiative,” and aiming for the 2008 ballot.

Glen Lavy, senior counsel for the other conservative group, the Proposition 22 Legal Defense and Education Fund, said religious groups see gay marriage as a battleground that will determine whether people who morally oppose homosexuality will be able to say so freely without being charged as hatemongers or without danger of losing their tax-exempt status.

“There’s a train wreck coming between religious freedom and these homosexual claims,” Lavy said.

Shannon Minter, legal director for the National Center for Lesbian Rights, also sees the fight as more than about marriage, calling it a struggle for civil rights.

“We are optimistic that the California Supreme Court will affirm the trial court’s historic ruling and strike down one of the last remaining laws to discriminate against an entire group of people in this state,” Minter said.

beslinger@examiner.comCaliforniaCalifornia NewsLocal

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