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Prop. 8 backers ask Supreme Court to hear gay marriage ban challenge

By Howard Mintz, San Jose Mercury News –

SAN JOSE, Calif. — Proposition 8 backers on Tuesday asked the U.S. Supreme Court to take up a challenge to California’s voter-approved ban on same-sex marriage.

In a legal brief, asked the high court to overturn a ruling earlier this year by the U.S. Court of Appeals for the 9th Circuit, which found the gay marriage ban unconstitutional.

The legal maneuver was expected. called the 9th Circuit’s 2-1 ruling “misguided” and asked the Supreme Court to reinstate Proposition 8. The 9th Circuit has agreed to leave the law intact while the case continues to unfold.

The gay marriage foes presented their case as upholding a foundation of civilization.

“Marriage between a man and a woman has been the cornerstone of our society for millenniums,” said Andy Pugno, Proposition 8’s general counsel. “Prop. 8 simply continues what every society has known and practiced: Children and society are far better off when traditional marriage is maintained,” he said in a news release.

The petition for a Supreme Court hearing, he said, points out that “our Constitution does not mandate the traditional definition of marriage, but neither does our Constitution condemn it. Rather, it leaves the definition of marriage in the hands of the people, to be resolved through the democratic process in each state.”

A lead attorney for the group that challenged Prop. 8’s constitutionality also saw a fundamental issue.

“The Supreme Court has long held that the freedom to marry is one of the most fundamental rights — if not the most fundamental right — of all Americans,” said co-counsel David Boies of the group American Foundation for Equal Rights. “As we have said from the very beginning of this case, the denial of that fundamental right seriously harms gay and lesbian Americans and the children they are raising.”

On Feb. 7, the 9th Circuit upheld a San Francisco federal judge’s August 2010 ruling that struck down Proposition 8 because it violated the equal protection rights of same-sex couples.

In its ruling, the 9th Circuit found that Proposition 8, approved in 2008, violated the rights of same-sex couples because it stripped away a previously established right to marry in California. About 18,000 couples married before the law went into effect as a result of a state Supreme Court ruling invalidating previous California laws banning same-sex nuptials.

The U.S. Supreme Court is expected to decide whether to accept the case when its next term resumes in the fall. The high court is also weighing whether to review two cases that challenge the legality of the federal Defense of Marriage Act, which bars federal benefits to same-sex couples.

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