Top US court backs ban on gay marriage

California’s Supreme Court backed the state’s gay marriage ban but said the 18,000 same-sex weddings that took place beforehand were still valid, in a ruling described by activists as a hollow victory.

Demonstrators outside the court in San Francisco booed, wept and yelled: “Shame on you!” Activists said they would go back to the voters as early as next year in a bid to repeal the ban.

In a 6-1 decision written by Chief Justice Ron George, the court rejected arguments that the ban approved by the voters last year was such a fundamental change in the California Constitution that it first needed the Legislature’s approval.

“We are extremely pleased that the Supreme Court has acknowledged the right of voters to define marriage in the California Constitution,” said Andrew Pugno, a lawyer for ProtectMarriage.com, the leading group behind the initiative.

But there was relief for thousands of couples who tied the knot last year in the five months that gay marriage was legal in California.

The court said it was a well-established principle that an amendment was not retroactive unless it was clear that the voters intended it to be, and that was not the case with Proposition 8.

The court also said it would be too disruptive to apply Proposition 8 retroactively and dissolve all gay marriages.

Doing that would have the effect of “throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state’s highest court”, the ruling said.

While gay rights advocates accused the court of failing to protect a minority group from the will of the majority, the justices said that the state’s governing framework gave voters almost unfettered ability to change the California Constitution.

The decision set off an outcry among a sea of demonstrators who had gathered in front of the court, holding signs and waving rainbow flags. Many people also held hands in a chain around a junction. More than 150 protesters who blocked a street were arrested for failure to obey a police officer and jaywalking.

In San Francisco’s Castro district, where many gays live, the large rainbow gay pride flag that flies in the neighbourhood’s Harvey Milk Plaza had been lowered to half-mast and a black stripe put on the top.

“We’re relieved our marriage was not invalidated, but this is a hollow victory because there are so many that are not allowed to marry those they love,” said Amber Weiss, 32, who was in the crowd at City Hall, near the court, with her partner, Sharon Papo.

They were married on the first day gay marriage was legal last year, June 17.

“I feel very uncomfortable being in a special class of citizens,” Ms Papo said.

A small group of Proposition 8 supporters also gathered outside the court.

“A lot of people just assume we’re religious nuts. We’re not. But we are Christians and we believe in the Bible,” said George Popko, 22.

The state Supreme Court ruled 4-3 last May that it was unconstitutional to deny gay couples the right to wed. For a while, that put California – the nation’s most populous state – back in its familiar position in the vanguard of social change. Massachusetts was the only other state to allow gay marriage.

In what gay activists called their “Summer of Love”, same-sex couples from around the country rushed to get married in California for fear the voters would take away the right at the ballot box. In November, Proposition 8 passed with 52% approval.

As the fight went on in California, the states of Iowa, Maine, Vermont and Connecticut legalised gay marriage, bringing to five the number of states that allow same-sex couples to wed.

In California, gay rights activists argued that the ban was improperly put to the voters and amounted to a revision – which required legislative approval - not an amendment. But the justices disagreed.

California still allows gay couples to form domestic partnerships.