Same-sex marriage ban OK'd

0 Comments | Oakland Tribune, Oct 6, 2006 | by Josh Richman, STAFF WRITER

California's same-sex marriage ban does not violate anyone's constitutional rights, and marriage's definition is best left to the people and lawmakers rather than courts, the state Court of Appeal ruled Thursday.

The 2-1 decision -- on six cases consolidated into one massive proceeding and argued to the court July 10 -- marked a significant but not final defeat for same-sex marriage advocates, who vowed to seek the California Supreme Court's review.

"(O)ur task as an appellate court is not to decide who has the most compelling vision of what marriage is, or what it should be," Presiding Justice William McGuiness wrote in a 64-page opinion for himself and Associate Justice Joanne Parrilli, both former Alameda County prosecutors and judges.

"We believe this power rests in the people and their elected representatives, and courts may not appropriate to themselves the power to change the definition of such a basic social institution," he wrote.

San Francisco Superior Court Judge Richard Kramer's March 2005 ruling that the statutory same-sex marriage ban serves no rational purpose and unconstitutionally denies same-sex couples equal protection under the law, "although purporting to apply rational basis review, essentially redefined marriage to encompass unions that have never before been considered as such in this state," McGuiness wrote.

"Laudable as the trial court's intentions may have been, it is beyond the judiciary's realm of authority to redefine a statute or to confer a new right where none previously existed."

Associate Justice J. Anthony Kline's51-page dissent said the state must show a compelling need to deny same-sex couples a fundamental constitutional right such as marriage.

"Judicial opinions upholding blanket denial of the right of gay men and lesbians to enter society's most fundamental and sacred institution are as incompatible with liberty and equality, and as inhumane, as the many opinions that upheld denial of that right to interracial couples," Kline wrote. "Like them, such opinions will not stand the test of time."

Arguing against same-sex marriage in these consolidated cases were state Attorney General Bill Lockyer's office, duty-bound to defend existing state law despite Lockyer's personal support for same-sex marriage; the Campaign for California Families; and the Proposition 22 Legal Defense and Education Fund, named for the 2000 ballot measure passed by 61 percent of voters to reinforce an already-existing statutory ban on same-sex marriage.

Lockyer spokesman Nathan Barankin said Thursday's ruling adopted many of the state's arguments, "in particular noting that a policy change of this magnitude is one that's appropriately made by California's voters."

But Lockyer always has maintained the state Supreme Court will have the final say, and he anticipates that "we'll have, sometime in 2007, a final statewide decision on the constitutionality of California's marriage laws."

Mathew Staver of Florida-based Liberty Counsel, who argued on the Campaign for California Families' behalf, hailed Thursday's ruling as "a crushing defeat for the same-sex marriage movement."

"This decision puts marriage back on the right track in California," he said. "It says judges should not be in the business of rewriting marriage and that the people are the ones that have the final say."

"The same-sex marriage advocates staked out three corners of the country -- New York, California and the state of Washington -- and they lost in all three jurisdictions," he noted, adding he's eager to make his case to the state Supreme Court.

Arguing for the right to same-sex marriage were the City and County of San Francisco, which fueled the debate by issuing marriage licenses -- later voided -- to same-sex couples in 2004, and lawyers representing same-sex couples who challenged the ban.

National Center for Lesbian Rights legal director Shannon Minter, who argued on the couples' behalf, acknowledged Thursday "we would've preferred to win, there's no doubt about that ... It would have been great to go up to the high court with two wins."

"But the majority decision is so weak that I don't think there's any chance the California Supreme Court will agree," Minter said, deriding what he said was the court's claim that the state need present no substantive reason for the ban.

"I don't think that's the law in California, I don't think it's right and I don't think the California Supreme Court will accept that," he said.

If past practice alone held sway, "then women and African- American people still wouldn't have the right to vote, interracial people wouldn't have the right to marry, women wouldn't have the right to serve on juries," he said. "It is the job of courts to step in and insist the law has to apply to everyone equally. You can't have certain protections only for certain groups of people."

San Francisco City Attorney Dennis Herrera issued a statement calling Thursday's ruling "a disappointing second round in what we've always known to be a three-round fight," and saying a similar ruling by the state Supreme Court "would represent one of California's darkest hours for civil rights."