California • Appeals court says ban on gay marriage is illegal.
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Utahns both praised and panned a federal appeals court ruling on Tuesday that California's gay-marriage ban is unconstitutional.
"It's a happy day," said Valerie Larabee, executive director of the Utah Pride Center. "We have many members of our community [in Utah] who have been married in California. …This is another important validation of what most Americans agree: There's no legitimate reason to deny marriage to same-sex couples."
In the past year, national public opinion polls have shown that Americans are evenly split or slightly in favor of legalizing gay marriage. In a Gallup poll last May, 53 percent supported recognizing same-sex marriages a jump of nine percentage points from the previous year. In Utah, where voters overwhelmingly approved a ban on same-sex marriage in 2004, a majority still oppose legalizing gay unions.
Sen. Orrin Hatch, R-Utah, blasted the 2-1 decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals.
"Today, two federal judges substituted their own values for those of the 7 million Californians who enacted Proposition 8. This is judicial activism at its worst," said a statement from Hatch, a member of the Senate Judiciary Committee. "This decision was not about the law, but about judges taking power away from the people."
Residents of the Beehive State have heavily invested in California's marriage fight donating $3.8 million for and against Proposition 8, the 2008 ballot measure that eliminated the right of same-sex couples to marry. In 2008, the Salt Lake City-based Church of Jesus Christ of Latter-day Saints endorsed the ballot initiative, urging members to give their time and money to help it succeed.
On Tuesday, the church issued a statement saying it "regrets" the 9th Circuit decision and urging "mutual respect and civility" in the ongoing public debate.
"California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman. We have always had that view," the LDS Church said. "Courts should not alter that definition, especially when the people of California have spoken so clearly on the subject."
Many gay and lesbian Utah couples traveled to California in 2008 to marry during the brief window that gay marriage was legalized there by the state Supreme Court. "Every time we drive over the state line, I kiss Richard and say, 'Well, we're husbands again,'" said Paul Trane of Murray, who married his partner of 20 years, Richard Teerlink, near Yosemite National Park in June 2008. "Civil marriage is a civil right."
Trane, 74, said he is "thrilled" with the 9th Circuit ruling but he expects the fight to go all the way to the U.S. Supreme Court.
"It will be a cliffhanger," he said, noting the conservative make-up of the court.
Bill Duncan, director of the Lehi-based Marriage Law Foundation, expects proponents of Prop. 8 first will appeal to a larger panel of the 9th Circuit, which includes 29 judges.
"Clearly, if they don't correct this decision, it would be appropriate for the U.S. Supreme Court to weigh in," said Duncan, an attorney who helped file an amicus brief backing Prop. 8. Duncan agreed with proponents of same-sex marriage that the right to marry is a fundamental right, but said that "changing the definition of marriage" is not.
"The U.S. Supreme Court has been pretty clear over the years. If a right's not contained in the text of the constitution, it's only going to be recognized if it's fundamental to the tradition and the history of the nation," Duncan said. "It's a very hard case to make that same-sex marriage is fundamental to the tradition and the history of the nation."
Clifford Rosky, a University of Utah law professor and board member Equality Utah, said the narrowness of the 9th Circuit ruling makes it less likely the U.S. Supreme Court will take an appeal. The ruling only applies to California and its unique circumstance of first allowing gay couples to marry and then taking away that right.