Published: Oct. 6, 2006

Jolting the gay-rights movement back a step, a divided state appeals court Thursday upheld California's ban on same-sex marriage and warned that judges should steer clear of resolving the controversy.

The bulky ruling set the stage for a long-anticipated showdown in the California Supreme Court and dashed the hopes of gay-rights advocates seeking to gain legal recognition for same-sex couples across the state. The 2-1 decision by the San Francisco-based 1st District Court of Appeal overturned a trial judge who last year found the state ban on gay marriage unconstitutional.

The justices made it clear that it's up to the voters or the Legislature to decide if gay couples can wed, not the courts.

"The time may come when California chooses to expand the definition of marriage to encompass same-sex unions," Justice William McGuiness wrote for the majority. "That change must come from democratic processes, however, not by judicial fiat."

San Francisco city officials, civil rights organizations and gay couples challenging the law vowed to continue the fight to the Supreme Court. But they will be pressing on with the legal challenge as the movement to expand marriage rights for gay people is on the defensive across the country. Courts in New York and Washington recently upheld bans similar to California's, although those courts - like California's - were divided.


Advertisement

"It really blindsided us because we were really hoping," said Mountain View's Art Adams, who is part of the case along with his partner, Devin Baker. "They took the easiest way out. It isn't a matter of legislation - it's a matter of right and wrong."

In San Francisco's predominantly gay Castro neighborhood, many people had yet to hear of the ruling Thursday afternoon, but most said they were not surprised.

"We live in a progressive bubble, but the bubble has a lot of cracks in it," said Jesse Kossar, 62, as he stood in the sun outside a local bar. "Not everyone is gay-friendly, no matter what we think. People don't like change."

Attorney General Bill Lockyer, who defended the marriage ban, agreed with the ruling because he argued that voters should lift the ban, not the courts. Meanwhile, conservative groups opposed to gay marriage praised the ruling, even though it scarcely addressed their main argument that marriage must be restricted to a man and a woman to foster procreation and protect children.

"I think this decision puts marriage back on the right track," said Mathew Staver, who represents Campaign for California Families. "It's a crushing defeat for the same-sex-marriage movement."

Thursday's ruling was the latest development in a saga that began in February 2004, when San Francisco Mayor Gavin Newsom took the unprecedented step of issuing marriage licenses to thousands of gay couples. The state Supreme Court then intervened, invalidating the marriages, finding that Newsom flouted state law and overstepped his authority.

At the same time, the high court invited a direct challenge to California's family code provisions, which restrict marriage to a man and a woman. San Francisco city officials, civil rights groups and same-sex couples then brought a series of lawsuits challenging the law, maintaining that the ban denies gays a "fundamental right" to marry.

Defenders of the law, including Lockyer, argued that strong new domestic-partners laws essentially gave same-sex couples the same legal rights as married heterosexual couples. But gay-rights advocates insist the state has established a "separate but equal" status for the gay couples.

The appeals court, however, rejected that argument, saying it is rational for the Legislature to preserve a traditional definition of marriage at the same time it provided domestic partners benefits.

"The state may legitimately support these parallel institutions while also acknowledging their differences," the court wrote.

In a sign of internal tussling, all three justices on the 1st District panel weighed in with separate opinions, giving the state Supreme Court 128 pages of legal reasoning to consider.

Justice J. Anthony Kline, a Democratic appointee of former Gov. Jerry Brown, wrote a scathing dissent, calling the decision a "backward step" that "demeans the institution of marriage and diminishes the humanity of the gay men and lesbians who wish to marry a loved one of their choice."

McGuiness, an appointee of former Republican Gov. Pete Wilson, was joined in the majority opinion by Justice Joanne Parrilli, another Wilson appointee who wrote separately to point out the strong religious and cultural clashes that drive the gay-marriage debate.

"This reality," she wrote, "is nothing to avoid, and we must acknowledge it if we are to proceed honestly."

The court repeatedly stressed that elected officials or voters must resolve the conflict, not judges - even though Gov. Arnold Schwarzenegger justified a veto of a same-sex marriage bill last year by saying he wanted to wait for the courts to rule on the matter. One legal expert said the 1st District "ducked the issue" by simply deferring to voters and the Legislature.

Both sides have always promised to appeal the 1st District's decision to the state Supreme Court.

"This is a disappointing second round in what we've always known is a three-round fight," San Francisco City Attorney Dennis Herrera said.

Legal experts disagree on whether the state Supreme Court, which is generally moderate on social issues, will rule differently from the appeals court. The Supreme Court has ruled in favor of gay rights in a number of cases in recent years, but is often split on divisive social issues.

"I think they are very unpredictable on this," said Michael Wald, a Stanford University law professor. "It's hard to know where they are going to be."