Gay marriage supporters have time on their side. Public opinion is shifting in their favor. Eventually, California's ban on same-sex marriage will be lifted.
But many gay couples, activists and lawyers say they have waited long enough. They are ready for change, and they think California is, too. So they are taking a calculated risk.
By pressing the Supreme Court to strike down the laws banning gay marriage, they are gambling that the voters who are now slowly moving in their direction will not retreat in anger in a backlash against what would be portrayed as an activist court legislating from the bench.
We may soon find out. The seven-member court heard the case Tuesday and appeared to be closely divided. One or two justices seemed to be leaning toward overturning the ban. But the same number appeared sympathetic to the status quo. It's not clear which outcome, in the long run, would be better for the gay community.
Justice Joyce Kennard, appointed to the bench by former Gov. George Deukmejian, a conservative Republican, asked both sides how they thought the court would react to a law banning mixed-race marriages. The lawyers for the state had to admit that the court would strike down such a law, since it already did, decades ago. And when Kennard asked the same question to Therese Stewart, a deputy city attorney for San Francisco, Stewart slammed it out of the park like a batter who knew what pitch was coming.
"I think this court would strike it down in a heartbeat," she said.
Would you apply that same reasoning to this case? Kennard asked Stewart. Another softball. Yes, she would, Stewart replied, though she was careful to add that she would never try to predict whether the court would share her view.
Several justices seemed dubious about some of the arguments offered by lawyers for a conservative Christian group fighting to preserve the status quo.
Mathew Staver, attorney for the Campaign for California Families, said same-sex marriage would undermine traditional marriage.
"It would lose its meaning," Staver said. "It would create a new system that is no longer recognizable as marriage."
It is difficult to understand why a legal union of two people who love each other and want to express their love as a mutual commitment recognized by the state – with all the responsibilities that entails – would undermine marriages between men and women. Isn't it just the opposite? Doesn't the proliferation of unwed partners undermine the institution of marriage?
Chief Justice Ronald George – appointed by Republican Gov. Pete Wilson – put the question in a legal rather than cultural context, asking whether same-sex marriages would violate any rights of heterosexuals. It wouldn't.
George also bristled when Staver suggested that same-sex marriages should be banned because children are meant to be raised by their biological parents.
"Do you mean adoptive parents are not as adept at raising their children?" George asked.
In fact, as one of the lawyers challenging the ban pointed out, California prohibits discrimination based on sexual orientation in adoption, foster care and custody battles – so it's a legal stretch to argue that the marriage law must do just the opposite in order to protect children.
Some of the arguments offered by the attorney general's office were not much better. One of them: Current marriage laws don't discriminate against gays because, just like heterosexuals, gays are free to marry someone from the opposite sex. There's justice for you.
When the state tried to argue that domestic partnerships, which gays can use as a substitute for marriage, were just as good as the real thing, Justice Carlos Moreno raised the specter of "separate but equal," the infamous justification for segregated public schools that the U.S. Supreme Court struck down in 1954.
And when the deputy attorney general waxed eloquently about the virtues and value of marriage, Justice Ming Chin turned to Stewart, the San Francisco lawyer, and asked whether the state hadn't just "made your argument for you?"
Justices Marvin Baxter, Kathryn Werdegar and Carol Corrigan, meanwhile, all seemed troubled by the idea of the court intervening in what they suggested might be an issue best left to the electorate or the Legislature. And if they hold to that position and are joined by, say, the chief justice, they could preserve the status quo.
Another possibility is that rather than rewriting the marriage law, they could strike down the entire thing and force the Legislature or the voters to start over from scratch. The end result would probably be the same: legal same-sex marriages. But the court's fingerprints would not be quite as clear.
That approach would also leave open one other avenue that is actually quite attractive: the privatization of marriage. Marriages, after all, are just contracts between individuals that the state has decided deserve a special place in the law. We could best avoid the entire debate over traditional vs. gay marriage by leaving the decision of how to structure marriage to the people involved – and leaving the government out of it.
But that's probably too much to ask.