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California ban on same-sex marriage upheld

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SAN FRANCISCO, California (CNN) -- A California appeals court ruled Thursday that state laws limiting marriage to heterosexual couples are constitutional and do not deprive gay or lesbian couples of a "vested fundamental right."

The ruling is the latest in a string of recent setbacks for same-sex marriage advocates.

In a 2-to-1 decision, a panel of the 1st District Court of Appeals overturned a 2005 ruling by a lower court judge in San Francisco that denying same-sex couples the right to marry was unconstitutional.

Thursday's decision likely will not be the final word, however, as the ruling is expected to be appealed to the California Supreme Court.

Writing the majority opinion, Justice William McGuiness said that because same-sex marriage has never been recognized as a right in California, "courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental institution as marriage."

He said changing the law to recognize same-sex marriage would be up to the California Legislature.

McGuiness conceded that courts previously have held that marriage of opposite-sex partners is a fundamental right.

But he said "no authority binding on us -- from California appellate courts to the United States Supreme Court -- has ever held or suggested that individuals have a fundamental constitutional right to enter the public institution of marriage with someone of the same sex."

"California law does not literally prohibit gays and lesbians from marrying. However, it requires those who do to marry someone of the opposite sex," McGuiness said.

In a ringing dissent, Justice J. Anthony Kline assailed the majority's reasoning and said the ruling was a "backward step."

"The state has not even claimed, let alone shown, that same-sex marriage conflicts with any legitimate interest it has in preserving and strengthening the institution of marriage," Kline said.

"Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race."

Thursday's decision was the fifth high-profile loss for same-sex marriage advocates since July, when the highest courts in both New York and Washington states upheld state laws proscribing marriage for gay or lesbian couples.

Also, constitutional amendments outlawing same-sex marriage in Nebraska and Georgia, which had been struck down by lower courts, were reinstated by the supreme courts of both states.

Only one jurisdiction in the United States, the state of Massachusetts, allows same-sex couples to marry, based on a controversial court decision in 2003. But those marriages aren't recognized by other states, and Massachusetts law prohibits non-residents from seeking marriage licenses there.

California and five other states -- Vermont, Connecticut, New Jersey, Hawaii and Maine -- have established either civil unions or domestic partnership laws that provide many of the benefits of marriage to same-sex couples.

Last week, California Gov. Arnold Schwarzenegger signed a bill that will allow gay or lesbian couples to file joint state tax returns for the first time.

The battle over same-sex marriage in California heated up in February 2004, when San Francisco Mayor Gavin Newsom ordered officials to begin issuing marriage licenses to gay and lesbian couples.

The California Supreme Court later ruled Newsom had overstepped his authority and declared about 4,000 licenses invalid. But at the time, the high court sidestepped the issue of whether banning same-sex marriage was unconstitutional, allowing legal cases arguing that issue to work their way through the lower courts.



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