Calif. court upholds gay marriage ban

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Both sides of the debate over same-sex marriage said Tuesday’s California Supreme Court decision upholding Proposition 8, the second defeat in a row for gay-marriage supporters, may have ended the legal battle on the ballot initiative but not the fight over the issue.

In a 6-1 decision, the court rejected arguments that the November ballot measure amending the state constitution to state that marriage is the union of one man and one woman violated the “inalienable” rights of same-sex couples to marry. The justices, however, did let stand the same-sex marriages performed before the initiative’s passage.

“The identification of a right as ‘inalienable’ has never been understood to mean that such right is exempt from any limitation or to preclude the adoption of a constitutional amendment that restricts the scope of such a right,” Chief Justice Ronald M. George said in the majority opinion.

The 136-page ruling was the second recent setback for gay-marriage supporters, after the New Hampshire House rejected a proposal to put religious-conscience protections in the state’s bill. Gov. John Lynch had said he would veto the bill without such a provision. The setbacks followed victories in the supreme courts of Iowa and Connecticut and the legislatures of Vermont and Maine.

Both sides of the gay-marriage debate took what they could from the decision, which ends the state court fight, though they agreed that California’s battle over gay marriage may spread to new venues.

The pro-gay Courage Campaign announced immediately that it would move to place a gay-marriage initiative on the 2010 California ballot.

“While we are pleased that the court recognized the legal marriages of 18,000 same-sex couples married in 2008, we are saddened by the Prop 8 decision,” Chairman Rick Jacobs said in a statement. “But we don’t have time to mourn the failure of the state court to restore marriage equality to California. It’s time to go on offense.”

On the other side, Family Research Council President Tony Perkins called the exemption for the existing marriages “a ticking time bomb” that could give a federal court an opening to declare Proposition 8 as a violation of the U.S. Constitution.

“You have people in the same state being treated differently, so you have an equal protection clause challenge in the making,” Mr. Perkins said.

But proponents of traditional marriage generally praised the decision and commended the court for obeying the will of the people.

“We’re grateful this court did not overturn the civil rights of all Californians to amend our own constitution,” said Brian Brown, executive director of the National Organization for Marriage, one of the prime movers behind Proposition 8. “The 7 million Californians who worked hard to protect marriage as the union of husband and wife are breathing easier today.”

Conservatives were prepared to launch a recall effort against the California Supreme Court justices if Proposition 8 had been overturned. While gratified by the ruling, supporters of traditional marriage said they were nonetheless troubled by the court’s decision to recognize the 18,000 same-sex marriages performed last year in the five-month window between June and November.

“Unfortunately, the court chose to ignore the plain meaning of Proposition 8 and will force state recognition of same-sex ‘marriage’ licenses issued last year,” Mr. Perkins said. “The court’s recognition of these ‘marriages’ clearly seeds the ground for a possible legal battle before the U.S. Supreme Court.”

In its decision, the court justified its holding by saying constitutional amendments are not considered retroactive unless they are clearly written that way, which the justices said Proposition 8 was not.

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