California court to hear gay marriage ban case

SAN FRANCISCO (Reuters) - California's Supreme Court on Wednesday agreed to hear a legal challenge against the state's voter-approved ban on gay marriage and let the ban stand in the meantime.

A decision by the same court in May opened marriage to same-sex couples in America's most populous state, one of a handful of states, provinces and mostly European countries where such unions are recognized.

When state voters passed the ban on November 4, social conservatives celebrated, but nationwide protests by gays and other ban opponents since then have given the debate new life.

The court case also pits two fundamental concepts of U.S. democracy against one another, with gay marriage advocates saying the proposition would open the doors to systematic repression of minorities and opponents saying courts must recognize the will of the people under separation of powers doctrine.

"I am optimistic that the Supreme Court will affirm that separate is not equal," San Francisco Mayor Gavin Newsom said in a statement. He has compared the fight for gay marriage to the 1960s civil rights battle against majority-tolerated segregation.

Some 52 percent of voters agreed to amend the state constitution to define marriage as between a man and a woman.

"This is a great day for the rule of law and the voters of California," said Andrew Pugno, counsel for the gay marriage ban proponents, who also wanted the matter settled in court.

Trend-setting California is divided over the issue, with cities like San Francisco and Los Angeles more open to gay marriage, and inland valleys, often compared to the socially conservative Midwest, against it.

About 20,000 same-sex marriages may hang in the balance, since the court asked for arguments on whether the ban, Proposition 8, would affect unions between the May court ruling and the November election.

LEGAL LIMBO

Those marriages have been seen as being in legal limbo, despite state officials including Gov. Arnold Schwarzenegger saying they should stand.

Gay advocates argued that Californians could not strip a right from a minority with only a majority vote -- the constitutional amendment process followed for Proposition 8. A more rigorous process called a constitutional revision was required, they argued.

National Center for Lesbian Rights' legal director Shannon Minter said defeat for his side would open the door to measures targeting other minorities.

"It mandates discrimination," he said of Proposition 8. "I really can't imagine a more serious issue before the court, or a more frightening one."

Ban supporters said the single-sentence change was a relatively small measure and that the state constitution gave wide latitude to the people through the amendment process.

"It would be a radical departure from 150 years of precedent (to overturn Proposition 8)," said Pugno, calling the challenge a "long shot."

"I think the larger question is going to be what is the status of the marriages that were created prior to the election," he said, adding that he had not taken a legal stand on the issue.

The court said it would hear arguments on the amendment process, the effect of Proposition 8 on same-sex marriages before the election, and on whether the amendment violated the state's separation-of-powers doctrine.

The court in a 6-1 decision asked all sides to work quickly and said oral arguments could be held as early as March 2009.

(Reporting by Peter Henderson and Jim Christie)