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Associated Press/Photo by Paul Sakuma

Prop 8 upheld

Marriage | California's high court upholds limiting marriage to between a man and a woman but affirms existing same-sex marriages

Minutes after the California Supreme Court announced Tuesday that it had upheld Proposition 8, the battle lines were drawn. Gay and lesbian activists marched away from San Francisco City Hall and blocked a nearby intersection in a show of civil disobedience. Leaders immediately called for money, volunteers, and a grassroots effort to re-amend the California Constitution to allow same-sex marriage.

The 6-1 decision-upholding Proposition 8 but also affirming same-sex marriages already on the books-was no surprise. Last May the court ruled that same-sex marriage was legal, but in November California voters overturned that ruling with Proposition 8, which amended the California Constitution to define marriage as between a man and a woman. Same-sex marriage was legal in California for four months, with the fate of an estimated 18,000 interim same-sex marriages remaining uncertain until today.

The day after Election Day, activists filed a petition claiming that Proposition 8 revised the California Constitution instead of amending it and was thus invalid. It also claimed that Proposition 8 compromised equal protection, deprived minority rights, and destroyed the court's power to enforce equal protection. The court refused the petitioners' request to stay enforcement until the issue was resolved, but agreed to decide on the other issues, hearing oral arguments in March.

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The court's opinion Tuesday cautioned that it was not deciding whether the provision was "wise or sound as a matter of policy" but merely whether it was an amendment or a revision-a change to the government's actual framework. Jim Campbell, litigation counsel for the Alliance Defense Fund, said the court's ruling merely went with precedent, since upholding a definition of marriage that has existed for almost all the state's history is not a "structural change to government."

The court also ruled that Proposition 8 did not abrogate the rights to privacy or due process, but instead carved out a narrow exception to those rights, basically denying same-sex couples the term "marriage" but retaining all of the substantive legal rights generally associated with marriage. The court may have previously defined "equal protection" to apply to same-sex marriage but can no longer do so, said Campbell, since California voters have validly and legally defined marriage themselves: "Equal protection under the California Constitution can no longer mean that same-sex couples must be given the opportunity to marry."

Wendy Wright, president of Concerned Women for America, said, "The arrogance of the California Supreme Court is limited but still holds sway. They had to recognize the right of California citizens to uphold marriage through a constitutional amendment, but refuse to admit they were wrong in imposing same-sex marriage in their previous decision."

Campbell added that the existence of thousands of same-sex couples "creates legal confusion surrounding same-sex relationships" within the state, with some couples married and some not.

Same-sex marriage advocates are already galvanizing their troops for another ballot battle in 2010, with Equality California mounting a 100-day grassroots effort to talk to 300,000 Californians in the areas where it lost in 2008, and recruit 1,000 clergy to help. If activists succeed, California's definition of marriage will change yet again. The battle will only end when public opinion stops changing, said Campbell: "So long as California permits initiatives on all issues, then I suppose it will continue until one side feels that public opinion is far enough against them that they can't win an election."

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