California high court upholds gay-marriage ban

Tuesday, May 26, 2009 | 4:59 p.m. CDT

SAN FRANCISCO — California's Supreme Court upheld the state's gay-marriage ban Tuesday but said the 18,000 same-sex weddings that took place before the prohibition passed are still valid — a ruling decried by gay-rights activists as a hollow victory.

Demonstrators outside the court booed, wept and yelled, "Shame on you!" Activists said they would go back to the voters as early as next year in a bid to repeal the ban.

In a 6-1 decision written by Chief Justice Ron George, the court rejected arguments that the ban approved by the voters last fall was such a fundamental change in the California Constitution that it first needed the Legislature's approval.

As for the thousands of couples who tied the knot last year in the five months that gay marriage was legal in California, the court said it is well-established principle that an amendment is not retroactive unless it is clear that the voters intended it to be, and that was not the case with Proposition 8.

Moreover, the court said it would be too disruptive to apply Proposition 8 retroactively and dissolve all gay marriages.

Justices say voters can change California Constitution

Doing that would have the effect of "throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state's highest court," the ruling said.

While gay rights advocates accused the court of failing to protect a minority group from the will of the majority, the justices said that the state's governing framework gives voters almost unfettered ability to change the California Constitution.

The decision set off an outcry among a sea of demonstrators who had gathered in front of the San Francisco courthouse, holding signs and waving rainbow flags. Many people also held hands in a chain around an intersection in an act of protest.

"We're relieved our marriage was not invalidated, but this is a hollow victory because there are so many that are not allowed to marry those they love," said Amber Weiss, 32, who was in the crowd at City Hall, near the courthouse, with her partner, Sharon Papo. They were married on the first day gay marriage was legal last year, June 17.

"I feel very uncomfortable being in a special class of citizens," Papo said.

Vow to fight every day

Jeanne Rizzo, 62, who was one of the plaintiffs along with her wife, Pali Cooper, said: "It's not about whether we get to stay married. Our fight is far from over. I have about 20 years left on this earth, and I'm going to continue to fight for equality every day."

A small group of Proposition 8 supporters also gathered outside the court.

"A lot of people just assume we're religious nuts. We're not. But we are Christians, and we believe in the Bible," said George Popko, 22, a student at American River College in Sacramento, where the student government officially endorsed Proposition 8.

In the state capital, Republican state Assemblyman Sam Blakeslee of San Luis Obispo, the incoming minority leader, said the court's decision "reaffirmed the principle that the people's votes do matter."

What the decision means in Missouri

In Missouri, those on both sides of the gay marriage debate said Tuesday's court decision halfway across the country will have no direct legal effect here.

But both sides pointed to the symbolic value of the California Supreme Court's decision upholding a voter-approved ban on same-sex marriage while allowing existing same-sex marriages to stand.

Former Missouri Republican lawmaker and gay marriage opponent Vicky Hartzler said the twofold ruling would "cause confusion in implementation of policy as well as perceptions," but overall found it "refreshing" and a "victory for democracy."

Ed Reggi of St. Louis, who married his partner of 10 years this month in Iowa, said he was disappointed in the ruling but took some solace knowing that California's existing gay marriages were not invalidated.

In 2004, Missouri became the first state in the country to adopt a constitutional provision restricting gay marriage and does not recognize it. Reggi said he fears the California decision will only embolden Missouri's opponents to stifle further conversation about civil rights for gay people.

"It will further the public argument that gays are not normal people, that we're not human," Reggi said.

"I'm trying to get a dialogue going, but this closes off the dialogue."

Earlier this month, Reggi and his partner were among 17 gay couples — accompanied by clergy members — who took a chartered bus from Missouri to Iowa to wed. On April 3, Iowa justices upheld a lower court ruling that rejected a state law restricting marriage to a union between a man and woman.

Not recognition but registration

Missouri does not recognize the marriages, but Jackson County and the cities of St. Louis, Kansas City and Columbia allow gay couples to register as domestic partners, granting such rights as visitation at a hospital or jail. But Reggi said most other benefits that married heterosexual couples take for granted are the "fights and struggles I have every day."

Hartzler, a former state representative from Cass County, was spokeswoman and an organizer for the Coalition to Protect Marriage, the group that supported the passage of Missouri's constitutional provision restricting marriage to a union between a man and woman.

She said the group wanted to protect the definition of marriage from judicial activism, by putting it in the state's constitution. The amendment passed with 71 percent of the vote in August 2004. Ten states followed suit that November.

Hartzler said of the California decision that it was "refreshing to see a court uphold the will of the people."

"It's important for people to continue to be involved in making their voice known in what they think is wise public policies, and hope that other states will follow suit."


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