Oct. 5 (Bloomberg) -- A California appeals court said state laws banning same-sex marriage don't violate the state's constitution, handing a defeat to San Francisco officials who allowed 4,000 gay couples to marry in 2004.

The court voted 2-to-1 to overturn a San Francisco judge's ruling striking down California statutes barring gays and lesbians from marrying. The 2005 ruling, which said California law discriminates against same-sex couples, followed lawsuits over San Francisco Mayor Gavin Newsom's decision in 2004 to issue marriage licenses to gay couples.

``The time may come when California chooses to expand the definition of marriage to encompass same-sex unions,'' the court said today in the majority opinion. ``That change must come from democratic processes, however, not by judicial fiat.''

The couples who challenged the ban said they would appeal. Today's ruling in California, which at 92,000 has the most same- sex couples, follows rulings in Washington, New York and Georgia, where courts recently rejected challenges to laws banning gay marriage. Forty-one states have enacted such laws, according to the National Conference of State Legislatures. Massachusetts is the only state where marriages between gay couples are legal.

``Today is an emotional setback,'' Mayor Newsom said during a press conference in city hall. ``But we're still marching toward the California Supreme Court.''

Woman's Suffrage

Newsom said gay marriage will eventually be allowed, and compared it with civil rights such as women's suffrage, interracial marriage and racial equality. He argued that the court shirked its duty when it ruled that lawmakers have the final say on gay marriage.

San Francisco City Attorney Dennis Herrera said in a statement that if the California Supreme Court upholds the appeals court ruling, it would be ``one of California's darkest hours for civil rights.''

Sixty-one percent of California voters approved an amendment to the state Family Code in 2000 that said only marriage between a man and woman is valid. A bill to legalize gay marriage in California failed in June 2005.

``The inescapable effect of the analysis the majority adopts is to diminish the humanity of the lesbians and gay men whose rights are defeated,'' Judge J. Anthony Kline wrote is his dissent.

Authority

The courts do not have the authority to create new rights and aren't free to rewrite statutes to say what they think is better social policy, the majority said.

There's no ``undetected'' right to marry a person of the same sex in the California constitution, Justice Joanne Parrilli said in a concurring opinion. It's up to the California legislature or the people through the initiative process to extend civil-marriage to same-sex couples, she wrote.

``Today's decision was disappointing, but we have always known this case ultimately will be decided by the California Supreme Court,'' Shannon Minter, legal director of the National Center for Lesbian Rights, said in a statement.

Couples seeking to overturn the ban on gay marriage have a good chance of prevailing before the state's highest court, said David B. Cruz, a law professor at the University of Southern California and an expert on constitutional law. The appeals court's view that it's up to the legislature to determine the law is overly broad and would defeat any court challenge, he said.

``The Supreme Court will be more comfortable staking out new legal ground,'' Cruz said. ``The majority's reading of precedents in this case was very narrow.''

The trial judge in the original case last year ruled there was no rational basis to exclude same-sex couples from marrying because they already have all the same rights as heterosexual couples.

The appeals court in today's decision argued that California's interest in preserving the traditional definition of marriage is a rational basis for restricting marriage.

The case is In re: Marriage Cases, A011449, California Appeals Court, First Appellate District, San Francisco.

To contact the reporter on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net.

Last Updated: October 5, 2006 21:12 EDT