What a surprise. A judge who believes that a state legislature, and the state's voters, should actually have some say in how things are done in their state. Just because the Constitution says it should be that way. And this is in California, yet! Have the gay advocates warmed up the tar and feathers yet? -------------------------------- http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/10/05/BAG4KLJAF24.DTL Appeals court upholds same-sex marriage ban Bob Egelko, Cecilia M. Vega and Wyatt Buchanan, Chronicle Staff Writer Thursday, October 5, 2006 (10-05) 15:40 PDT SAN FRANCISCO -- Gays and lesbians have no constitutional right to marry in California, a right that can be granted only by state lawmakers or voters, a state appeals court ruled today. The 2-1 decision, which reversed a San Francisco Superior Court judge's ruling, was a defeat for gay-rights advocates, who have looked to California courts to follow the lead of a 2003 ruling by Massachusetts' high court legalizing same-sex marriage in that state. The California Supreme Court is expected to have the final word in the case sometime next year. In today's ruling, the Court of Appeal in San Francisco said the boundaries of marriage are up to the Legislature, which passed a law in 1977 defining marriage as the union of a man and a woman. State voters reaffirmed that decision in a 2000 initiative that denied recognition to same-sex marriages in other states. "The Legislature and the voters of this state have determined that 'marriage' in California is an institution reserved for opposite-sex couples, and it makes no difference whether we agree with their reasoning,'' Presiding Justice William McGuiness said in the majority opinion. Although California courts have recognized a fundamental right to marry, he said, it applies only to the right to marry a partner of the opposite sex. "That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings,'' McGuiness said. He also noted that California has passed laws that give registered domestic partners the same rights as married couples under state law, although those rights are not recognized by the federal government. "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, while at the same time providing equal rights and benefits to same-sex partners,'' McGuiness said.