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Why momentous Prop. 8 ruling might not satisfy gay-rights groups

A federal court overturned Prop. 8, California's ban on gay marriage, but the ruling did not affirm a federal constitutional right to same-sex marriage, as gay-rights groups had hoped. 

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What happens next

Supporters of Prop. 8 are expected to appeal. They have two options. They can ask all active judges on the Ninth Circuit to re-hear the appeal, or they can file an appeal to the US Supreme Court.

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The case has attracted substantial national interest because it was seen as an opportunity for the a federal appeals court to address a more fundamental question – whether gay and lesbian Americans enjoy a federal constitutional right to engage in same-sex marriage.

The US Supreme Court has not directly addressed that issue, but has suggested that there is no such right. Gay-rights advocates had hoped that the Ninth Circuit panel might become the first appeals court to challenge that position, forcing the high court to confront the issue.

Instead, the judges took a different approach, ruling that the effect of amending the state constitution to ban same-sex marriage after same-sex couples had already enjoyed that right amounted to unequal treatment, in violation of the Fourteenth Amendment’s equal protection clause.

Judge Reinhardt’s decision comes at a time when gay rights groups are fighting across the country in the courts, at the ballot box, and in public opinion forums for equal treatment with heterosexual couples in marriage. Groups favoring the traditional definition of marriage are fighting back.

Currently, six states and the District of Columbia authorize same-sex marriage. Thirty states, including California, have passed state constitutional amendments banning same-sex marriage. In addition, 37 states have passed statutes defining marriage as between one man and one woman.

There are more than 98,000 same-sex couples in California, raising more than 30,000 children, according to the 2010 Census.

Long-running battle

The appeals-court decision stems from a long-running battle in California over whether same-sex relationships must be afforded equal treatment with heterosexual marriages.

California law authorized domestic partnerships for same-sex couples, granting gay and lesbian partners the same legal rights and protections as married heterosexual couples. But state law restricted the use of the term “marriage,” to a legal bond between one man and one woman.

The California Supreme Court overturned that restrictive definition, ruling that the state constitution required that couples be treated equally regardless of sexual orientation. The landmark ruling in May 2008 came after city officials in San Francisco in 2004 began performing same-sex marriages without prior legal authorization.

Immediately following the California Supreme Court ruling, opponents of same-sex marriage began organizing a ballot initiative, Prop. 8, to overturn the state high court ruling by amending the state’s constitution to restrict marriage to one man and one woman.

In November 2008, voters approved the ballot measure 52 percent to 48 percent, with seven million voters supporting the man-woman limitation, and 6.4 million opposing it.

With the state Supreme Court decision overturned and the California constitution amended, gay-rights advocates took their fight to the federal courts.


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