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Originally published February 7, 2012 at 9:01 PM | Page modified February 8, 2012 at 6:40 AM

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California gay-marriage ruling may affect Washington

A federal appeals court Tuesday struck down Proposition 8, finding California's ban on same-sex marriage is unconstitutional because it...

San Jose Mercury News

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SAN FRANCISCO — A federal appeals court Tuesday struck down Proposition 8, finding California's ban on same-sex marriage is unconstitutional because it deprives gay and lesbian couples of the equal right to wed.

In a decision that pushes the gay-marriage issue a step closer to the Supreme Court and could have ramifications in Washington state, the 9th U.S. Circuit Court of Appeals upheld former U.S. District Judge Vaughn Walker, who invalidated Proposition 8 in 2010 after conducting an unprecedented trial.

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," wrote Judge Stephen Reinhardt, who was joined by Judge Michael Daly Hawkins.

Judge N. Randy Smith dissented, saying there were "legitimate governmental interests" in restricting the definition of marriage to a union between a man and woman.

Proposition 8 backers now can ask the 9th Circuit to rehear the case with an 11-judge panel or proceed directly to the Supreme Court. Smith's dissent could be a strong indicator there will be some support within the court to take a second look at the case.

The appeals court also rejected the argument that Walker's ruling should be scrapped because he did not disclose he was in a long-term same-sex relationship while he was handling the case. Smith joined in that part of the ruling.

As a result of the continued legal wrangling, same-sex marriages are not expected to resume in California soon, with further appeals likely to stretch at least into next year.

Washington state vote

The ruling comes as the Washington Legislature is preparing to approve legislation that would make this state the seventh in the country to legalize same-sex marriage.

Opponents have said they are prepared to mount a referendum campaign to put the measure before voters in November.

Seattle-area attorneys say the Proposition 8 ruling, if upheld, could have implications for referenda and initiatives in states such as Washington, particularly within the 9th Circuit.

Peter Nicolas, a University of Washington law professor, said any repeal of the Washington law could be challenged by a gay couple, based on the 9th Circuit ruling.

"The odds of applying the 9th Circuit decision, as written, to a Washington scenario, assuming it stands on appeal, are certainly likely," Nicolas said.

In the Proposition 8 ruling, Reinhardt, considered one of the nation's most liberal judges, relied heavily on the Supreme Court's 1996 decision striking down a Colorado law that stripped gays and lesbians of protections against discrimination there.

No fundamental right

Tuesday's ruling, however, was focused on California's circumstances, notably the fact Proposition 8 took away the right of same-sex couples to marry that had been established in a 2008 California Supreme Court decision.

The 9th Circuit did not declare a fundamental right for same-sex couples to marry, a broader definition that could have undercut bans on gay marriage in four other Western states.

Gay-marriage advocates cheered the ruling. California Attorney General Kamala Harris called the decision a "victory for fairness." And California Gov. Jerry Brown issued a statement saying the ruling is "a powerful affirmation of the right of same-sex couples to marry."

The appeals court's ruling marks another setback for gay-marriage foes, who passed Proposition 8 in 2008 by 52 percent to 48 percent.

"No court should presume to redefine marriage," said Brian Raum, senior counsel for the Alliance Defense Fund. "We are not surprised that this Hollywood-orchestrated attack on marriage — tried in San Francisco — turned out this way. But we are confident that the expressed will of the American people in favor of marriage will be upheld in the Supreme Court."

Proposition 8 restored California's gay-marriage ban, trumping a 2008 state Supreme Court ruling that had invalidated California's prior laws forbidding same-sex nuptials.

Backed by gay-rights advocates and the city of San Francisco, two gay couples sued to overturn Proposition 8 in 2009, openly describing the case as an opportunity to force the U.S. Supreme Court to take on the issue.

Kristin Perry and Sandy Stier, a Berkeley, Calif., couple, signed on to the lawsuit, which was crafted by two of the nation's top lawyers, David Boies and former Solicitor General Theodore Olson.

The legal challenge has not affected the roughly 18,000 couples who married in the window of time before California voters restored the gay-marriage ban, creating a two-tiered system of relationships for gay and lesbian couples in the state. Gay-rights advocates argued the circumstances underscored the legal weakness in outlawing same-sex marriage, but Proposition 8 supporters disagreed, saying the state's strong domestic-partner protections are sufficient.

Lawyers for same-sex couples relied primarily on the argument that Proposition 8 violates federal equal-protection rights, saying the law has no social or legal basis other than a discriminatory intent against gays and lesbians. Proposition 8 supporters argued voters had an interest in preserving the traditional definition of marriage and its importance in procreation.

The 9th Circuit heard legal arguments in December 2010 but delayed a decision to let the California Supreme Court decide whether Proposition 8 supporters have a legal right to defend the law when the state's top elected officials refuse to do so.

The state Supreme Court ruled last year that Proposition 8 backers do have that right, returning the case to the 9th Circuit.

Seattle Times staff reporter Lornet Turnbull contributed

to this report.

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