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For more than a year, California had been one of the bright spots for the lawyers urging states around the country to allow same-sex marriage. That changed on Thursday. In a split decision overturning a San Francisco trial court, the state’s First District Court of Appeal concluded the ban on same-sex marriage now woven into California law is constitutional. “We believe it is rational for the Legislature to preserve the opposite-sex definition of marriage, which has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states of our union,” Justice William McGuiness wrote for the 2-1 majority, “while at the same time providing equal rights and benefits to same-sex partners through a comprehensive domestic partnership scheme.” McGuiness and Justice Joanne Parrilli, who wrote a concurring opinion, opted to apply the rational-basis test, a more deferential constitutional standard than the strict-scrutiny analysis the trial court had chosen. In doing so, the majority opinion largely followed the highest state appellate courts in New York and Washington, which separately concluded this summer that the right to same-sex marriage is not fundamental � and therefore not subject to heightened scrutiny. But Justice J. Anthony Kline’s dissent � impassioned and nearly as long as McGuiness’s 64-page opinion � gave same-sex marriage proponents something to cling to as they prepared to ask the state Supreme Court to review the case. Kline drew comparisons to Loving v. Virginia, the 1967 U.S. Supreme Court case that struck down miscegenation laws, and Perez v. Sharp, the California Supreme Court case that did the same in 1948. He also suggested strict scrutiny was necessary because California’s marriage laws are burdening a suspect class � meaning, among other things, that sexual orientation is an immutable characteristic. “To say that the factors which determine whether a classification is suspect do not all apply to homosexuals requires us to deny as judges what we know as people,” he wrote. He also echoed the argument offered by lawyers for the city of San Francisco and same-sex couples, saying the fundamental right to marriage so often cited in case law is properly interpreted as the right to marry the person of one’s choice. On all those points, McGuiness and Parrilli parted ways with Kline. “Everyone has a fundamental right to ‘marriage,’” McGuiness wrote, “but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner.” Both McGuiness, and Parrilli in her concurring opinion, took pains to distance their legal conclusions from whatever their personal views might be. “Our task as an appellate court is not to decide who has the most compelling vision of what marriage is, or what it should be,” McGuiness wrote. Kline’s dissent, McGuiness added, gives “what is essentially an impassioned policy lecture” on why marriage should be extended to same-sex couples. “But the court’s role is not to define social policy; it is only to decide legal issues based on precedent and the appellate record,” McGuiness added. “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.” Parrilli, who signed the majority opinion, went out of her way to acknowledge that as a practical matter, the case really involves much more than the law. In a seven-page concurrence, she said she saw the case as “about two things: Who gets to define what marriage is, and an uncomfortable intersection of law, culture and religion. The court must confine itself to the former question; it is not in a position to resolve the latter issue, though it must be conscious of the dynamic. “The ‘public square’ and the Legislature are the appropriate places within a democracy for the debate to fully develop and the evidence to be collected,” she added. “To those who are waiting for the rewards and responsibilities of marriage, this process will seem too slow; to those who feel the challenge to their ‘sacred’ civic institutions and the likelihood of change, it will seem too fast. The courts must move only at the pace, and within the limits, the law permits.” ROUND THREE California’s same-sex marriage litigation traces back to 2004 when San Francisco Mayor Gavin Newsom took the stunning move of ordering city officials to begin allowing same-sex marriages at City Hall one February day. While the courts invalidated the roughly 4,000 such marriages performed by the end of that summer, ever since the city and same sex-couples have been litigating the constitutional question against the state and groups opposing a change. Thursday’s decision was the latest in a series of victories since this summer for opponents of same-sex marriage. Liberty Counsel Chairman Mathew Staver, who argued before the First District to maintain the laws as they are, rattled off half a dozen decisions, including those from New York and Washington state’s highest courts, and others at various levels in Georgia, Tennessee, Connecticut and Nebraska. With the First District majority’s reliance on the rational-basis test, he added, “now the case is back on track in terms of the exact kind of review the case should have.” Alliance Defense Fund senior counsel Glen Lavy, who likewise argued against gay marriage before the First District in July, agreed there’s been a recent shift in momentum. “We’ve had some pretty substantial decisions recently.” Still, both Liberty Counsel and ADF suffered procedural blows Thursday. The only point that McGuiness, Parrilli and Kline agreed on was that both groups’ clients had no standing to seek the declaratory relief requested in their part of the litigation. If it stands, the groups may be limited to filing only briefs if the Supreme Court takes up the case as expected, and could be shut out of oral argument as well as scheduling decisions. Both groups said they plan to appeal that aspect of Thursday’s decision. That aspect of the court’s ruling was small comfort to some of their opponents. “I’m more mad than sad,” said Bobbie Wilson, a partner at Howard, Rice, Nemerovski, Canady, Falk & Rabkin serving as pro bono counsel to the city. “The court sort of buys into this argument that separate but equal is OK.” Shannon Minter, the National Center for Lesbian Rights attorney who argued before the First District on behalf of several same-sex couples, predicted Kline’s dissent would be an asset at the Supreme Court. Calling the majority opinion “anemic” in comparison, and in a way, encouraging, Minter added, “The majority did not develop or articulate any substantive justification for the exclusion. � They could have said something like lesbian and gay people, their relationships aren’t as stable, they don’t have children in the same way. They didn’t say anything like that.” City Attorney Dennis Herrera, in a statement, called the decision “a disappointing second-round in what we’ve always known to be a three-round fight.” But praising Kline’s dissent, he predicted his views would “ultimately prevail.” Lawyers on both sides predicted the Supreme Court would accept review, and would likely hear the case sometime in 2007. “This is a case of such significance and one in which the legal issues are well-defined and well-framed by lower court proceedings, that I would not be surprised if the court takes up the case more quickly than typical,” said Nathan Barankin, a spokesman for Attorney General Bill Lockyer, whose office has defended the laws in their current form. The First District’s ruling in the six coordinated cases, known collectively as In re Marriage Cases, JCCP 4365, is online at www.callaw.com and will appear in print in Monday’s California Daily Opinion Service.

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