By Ashley Surdin
Washington Post Staff Writer
Tuesday, May 26, 2009 3:00 PM

LOS ANGELES, May 26 -- The California Supreme Court upheld a voter-approved constitutional amendment Tuesday that bans same-sex marriage in the state.

The court said, however, that those couples who wed in the state under an earlier opinion from the court, will be considered married.

The 6-1 ruling comes after three months of deliberation and nearly a year after the court struck down state laws that similarly banned such marriages. Then, the court ruled that the laws were unconstitutional and that the unions were a "basic civil right." This time, factoring in a successful Nov. 4 ballot measure that defines marriage as a union "between a man and a woman" in the state's constitution, which trumps state laws, the court revealed its hesitancy to override the will of the people.

In a statement issued shortly after the decision, Gov. Arnold Schwarzenegger (R) said, "While I believe that one day either the people or courts will recognize gay marriage, as Governor of California I will uphold the decision of the California Supreme Court. Regarding the 18,000 marriages that took place prior to Proposition 8's passage, the Court made the right decision in keeping them intact. I also want to encourage all those responding to today's Court decision to do so peacefully and lawfully."

The 136-page majority opinion, authored by Chief Justice Ronald M. George, noted that it's not up to the court to determine whether the ban, known as Proposition 8, "is wise or sound as a matter of policy or whether we, as individuals believe it should be a part of the California constitution," but rather "is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."

The court also noted that this case is different than the one presented in its landmark May 15, 2008, decision, which struck down state laws banning same-sex marriage. In that case, the court noted, it determined the validity of a statutory law; this time, it determined the scope of the right of the people to change or alter the state Constitution through the initiative process.

The court also unanimously held that the decision cannot be applied retroactively, thereby preserving the thousands of same-sex marriages that took place between June and November.

Justice Carlos R. Moreno filed a dissenting opinion in the case, concluding that Proposition 8 is invalid because it is not a lawful amendment of the constitution, in effect altering the equal protection clause to deny same-sex couples equal treatment.

"Requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution," Moreno wrote. The ruling, he argued, "not only allows same-sex couples to be stripped of the right to marry that this court recognized . . . it places at risk the state constitutional rights of all disfavored minorities."

The ruling to uphold the ban has been anticipated for months, after oral arguments indicated that the court was loath to reject a voter-approved proposition.

Supporters of the ban on same-sex marriage hailed the decision as a preservation of the institution of marriage and a respect for the will of the people.

"We are extremely pleased that the Supreme Court has acknowledged the right of the voters to define marriage in the California Constitution," said Andrew Pugno, general counsel of ProtectMarriage.com, the coalition behind Proposition 8, in a statement. "The voters have decided this issue and their views should be respected."

The Mormon Church, which had been a major supporter of Proposition 8, applauded the decision. "The issue the court decided was whether California citizens validly exercised their right to amend their own constitution to define marriage as between a man and a woman. The court has overwhelmingly affirmed their action," the church said on its Web site. "The Church of Jesus Christ of Latter-day Saints recognizes the deeply held feelings on both sides, but strongly affirms its belief that marriage should be between a man and a woman."

But it hardly settles the issue, as same-sex marriage advocates have indicated their next step will be another ballot measure to undo Proposition 8.

"Today's decision is a terrible blow to same-sex couples who share the same hopes and dreams for their families as other Californians," said Shannon Minter, legal director for the National Center for Lesbian Rights, who argued the case before the California Supreme Court in March. "But our path ahead is now clear. We will go back to the ballot box and we will win."

Equality California, the state's largest gay advocacy organization, vowed on Tuesday to mobilize support in previously hard-to-reach sections of California, including Orange County and the Central Valley.

"We believe, as do the majority of our members, that 2010 is the best time to return to the ballot to repeal Prop. 8," spokesman Marc Solomon said in a statement. "However, we will make the final decision on when to return in collaboration with our coalition partners and allies throughout the state."

The only other recourse for gay rights activists would be to take the matter to federal court -- something advocates are hesitant to do.

"We think it's way too early to pose that question," said Jennifer C. Pizer, a lawyer with the gay rights group Lambda Legal, which is representing one of the plaintiffs in the case, on the eve of the ruling. "Our American history shows that the sensible thing is to build your foundation on an issue like this step by step in quite a few states, start changing federal policy . . . before asking the ultimate question."

"All the legal and policy and political groups feel very strongly that the sensible course would be another ballot measure to undo Prop. 8," she said.

It's unclear how voters would respond to another ballot proposition. Some predicted that the recent legalization of same-sex marriage in Eastern states would sway California's highest court. Advocates hope those events would influence voters.

Thousands of same-sex marriage supporters and groups were expected to rally and march throughout the state Tuesday, including in San Francisco and West Hollywood.

Tuesday's ruling is the latest chapter in what has become a lengthy battle over same-sex marriage. The issue gained national attention in 2004 from San Francisco Mayor Gavin Newsom's directive to provide marriage licenses to same-sex couples. Thousands of couples descended on San Francisco's city hall on Feb. 12 of that year to obtain the certificates, but the California Supreme Court later nullified the unions, saying the city lacked that authority without a ruling from the court.

But the court provided that authority with its landmark decision May 15, 2008, which found that the state could prove no compelling interest in denying marriage. In the 4 to 3 ruling, Chief Justice Ronald M. George said the decision was based on the California court's first-in-the-nation decision in 1948 to end the state's prohibition on interracial marriage, nearly 20 years before the U.S. Supreme Court took the same action.

Marriage is a "basic civil right" guaranteed to all Californians, wrote George in the 121-page ruling; "an individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights."

Some 18,000 same-sex couples married while opponents -- many conservative religious groups and politicians -- collected signatures for the Nov. 4 ballot measure known as Proposition 8. Approved by 52 percent of voters, the measure overturned the judges' decision and put an end to same-sex marriages.

Challengers to Proposition 8 contended that under the equal protection clause in the state's constitution, a majority of voters are not allowed to revoke equal rights intended for everybody.

Specifically, they argued, that kind of change is a "revision," not an "amendment." The distinction is important because revisions require two-thirds approval in the legislature and then a popular vote. Amendments can be approved by a popular vote only.

On Tuesday, the court held that Proposition 8 did not qualify as a revision. Among the reasons, the court noted that Proposition 8 does not -- with the limited exception of a "marriage designation" -- infringe on other aspects of a same-sex couple's constitutional right to establish an officially recognized and protected family relationship, or to equal protection of the laws.

The court also noted that there is authority to support the claim that California voters cannot pass a measure that diminishes a state constitutional right, even if that right has been interpreted and applied in court. Previous amendments have done just that, the court noted.