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Appeal Filed After Judge Overturned Calif. Same-Sex Marriage Ban

August 5, 2010 at 6:49 PM EDT

RAY SUAREZ: And to the fallout from the ruling in California on same-sex marriage.

CROWD (singing): Going to the chapel, and we’re going to get married.

RAY SUAREZ: Amid that triumphant group’s song and celebrations in the streets of San Francisco, one sound was notably absent after yesterday’s ruling on Proposition 8, actual wedding bells, because even though federal District Judge Vaughn Walker nullified California’s voter-approved ban on same-sex marriage, he didn’t immediately vacate the law, pending appeal.

But the judge firmly declared the ban unconstitutional, because it violates the equal protection clause of the U.S. Constitution.

He wrote: “Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest. Rather than being different, same-sex and opposite-sex unions are, for all purposes relevant to California law, exactly the same.”

Opponents of gay marriage charge that Walker was swayed more by personal interests than the law.

Robert (sic) Thomasson leads

RANDY THOMASSON, president, The judge has imposed his own agenda upon the voters and the children and the parents of California.

RAY SUAREZ: An appeal of the decision was filed today with the Ninth U.S. Circuit Court of Appeals, which is covers nine Western states. From there, the issue is almost certainly bound for the U.S. Supreme Court. The Supreme Court has handed down several decisions in recent years regarding gay rights, but none on the question of marriage.

DAVID BOIES, attorney for the American Federation for Equal Rights: Ted and I have a deal. He’s going to get the five justices that voted for him in Bush v. Gore.


DAVID BOIES: And I’m going to get the four justices that voted for me in Bush v. Gore.

ROBERT MOORE: The two lead plaintiff’s attorneys in the case, David Boies and Ted Olson, were on opposite sides when they battled over the 2000 presidential race.

On Wednesday, after the gay marriage ruling, they were asked what might happen on appeal.

DAVID BOIES: The fundamental right to marry is already established by ample Supreme Court precedent. In light of that, we believe the constitutional violation of depriving gay and lesbian citizens of this fundamental right is very clear. And we believe that that will be held by the Ninth Circuit Court of Appeals and by the United States Supreme Court.

RAY SUAREZ: By contrast, during the trial, defense lawyers argued the Supreme Court has never recognized any such right. As a result, they called just two witnesses.

Five states now permit gay marriage: Vermont, New Hampshire, Massachusetts, Iowa, and Connecticut. It’s also allowed in the District of Columbia. Maryland and New York recognize same-sex unions from other jurisdictions, but do not permit the practice. The California case could become the vehicle that leads to legalization nationwide .

For now, there’s no date set for hearing the appeal, much less any forecast of when the case will go before the nine justices of the U.S. Supreme Court.