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High court asked to accept appeal over California same-sex marriage ban

By Bill Mears, CNN Supreme Court Producer
updated 9:36 PM EDT, Tue July 31, 2012
Supporters of California's measure banning same-sex marriage asked the U.S. Supreme Court to allow it go back into effect.
Supporters of California's measure banning same-sex marriage asked the U.S. Supreme Court to allow it go back into effect.
STORY HIGHLIGHTS
  • The Supreme Court will decide in coming weeks whether to put the case on its docket
  • A lower court ruled that Proposition 8 denies gays and lesbians a legal right
  • A coalition of groups under the ProtectMarriage.com banner urges the court to back the ban
  • The Courage Campaign wants the opposite outcome

Washington (CNN) -- Supporters of California's voter-approved ballot measure banning same-sex marriage in the state asked the U.S. Supreme Court Tuesday to allow it go back into effect.

At issue is whether the Constitution's 14th Amendment guarantee of "equal protection" prevents states from defining marriage as only between one man and one woman.

The justices will decide in coming weeks whether to put this hot-button social issue on its docket. If it agrees to take the appeal, oral arguments would likely be held early next year.

In February, a federal appeals court in San Francisco ruled the measure unconstitutional. In its split decision, the panel found that Proposition 8 "works a meaningful harm to gays and lesbians" by denying their right to civil marriage.

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The same sex marriage issue is working on two legal tracks. The high court is currently considering separate appeals over the congressionally authorized Defense of Marriage Act, which also defines marriage for federal purposes as only between one man and one woman. The justices have the ultimate discretion to refuse taking on the issue.

The "Prop 8" case, as it has become known, has been down a complicated legal road. California's Supreme Court ruled that same-sex marriages were legal in 2008. After the statewide ballot measure banning them passed with 52% of the vote later that year, gay and lesbian marriages were put on hold.

Currently, same-sex marriage is legal in six states: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York, along with the District of Columbia. Washington and Maryland voted earlier this year to allow same-sex marriages, but the laws have not yet taken effect.

Another five states -- Delaware, Hawaii, Illinois, New Jersey and Rhode Island -- allow civil unions, providing state-level spousal rights to same-sex couples.

President Barack Obama, who previously opposed same-sex marriage, said in June he now supports it.

"When I think about those soldiers or airmen or Marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that 'don't ask, don't tell' is gone, because they are not able to commit themselves in a marriage, at a certain point I've just concluded that for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married," the president told ABC News.

The state law's supporters, led by a coalition of groups under the ProtectMarriage.com banner-- urged the justices in their 500-plus petition to preserve the will of the voters in this politically charged social issue.

"Californians of all races, creeds, and walks of life have opted to preserve the traditional definition of marriage not because they seek to dishonor gays and lesbians as a class, but because they believe that the traditional definition of marriage continues to meaningfully serve society's legitimate interests, and they cannot yet know how those interests will be affected by fundamentally redefining marriage."

California is the only state that accepted, then revoked, same-sex marriage as a legal right.

Opponents of Prop 8 urged the high court to expand the "traditional" views of marriage.

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"The president of the United States, a majority of the American public, two federal courts and most of America's NATO allies view marriage equality as a fact," said Rick Jacobs, founder of the Courage Campaign. "We can only hope that the Supreme Court will once again act for all Americans on the right side of history, not for a few hysterical ones scared of love."

In the separate issue over congressional authority, a federal appeals court in Massachusetts this spring struck down a key part of the 1996 Defense of Marriage law as unconstitutional. The issue before the 1st U.S. Circuit Court of Appeals was whether the federal government could deny tax, health and pension benefits to same-sex couples in states where they can legally marry. The Massachusetts case was appealed recently to the U.S. Supreme Court.

The California appeal is Hollingsworth v. Perry.

Tech is getting more gay-friendly

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