Theodore Olsen, Sonia Sotomayor,  Stephen Breyer, Clarence Thomas, Antonin Scalia, John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan.

This artist rendering shows Attorney Theodore Olsen, right, representing the same-sex couples, addresses the Supreme Court in Washington, Tuesday, March 26, 2013, as the court heard arguments on California’s ban on same-sex marriage. Justices, from left are, Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, and Justices Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan. ((AP Photo/Dana Verkouteren))

Landmark case will determine whether gays can marry in California, possibly nationwide
By Howard Mintz, San Jose Mercury News
Posted: 03/26/2013 04:51:33 PM PDT
Updated: 03/26/2013 04:56:33 PM PDT

WASHINGTON — Struggling with the gay marriage issue for the first time in history, the U.S. Supreme Court on Tuesday resembled the kid at the end of the highest diving board at the pool for the first time – inclined to turn around and try another day rather than take a bold jump into an uncertain future.

During more than an hour of arguments in their jammed courtroom, the justices were clearly divided over California’s Proposition 8 voter-approved ban on same-sex marriage, although reluctant to take the larger step of casting a broader ruling that would apply to gay marriage rights across the country. The only certainty is that the Supreme Court will leave the fate of California’s gay marriage ban dangling until June, when it must rule.

But the justices’ barrage of questions hinted at options that could open the door to same-sex nuptials in California by simply leaving intact lower court rulings declaring the law unconstitutional.

“Always hard to predict based on arguments, but I think it is more likely that they will dismiss (on procedural) grounds than decide the merits (of the gay marriage issue),” said Erwin Chemerinsky, dean of UC-Irvine’s law school.

As hundreds of gay marriage supporters and opponents waved placards and chanted for their causes on the Supreme Court steps outside, the justices expressed concern over whether the time is right for them to take on a state’s right to ban gay marriage. Their hesitation raised the possibility they may not even decide the central legal issues in the Proposition 8 case. Justice Anthony Kennedy, a key swing vote, wondered whether the court perhaps should not have taken on the controversy in the first place.

The justices considered the arguments as Berkeley’s Kristin Perry and Sandy Stier and another California couple challenging Proposition 8 sat in the courtroom among a contingent of gay rights supporters such as Hollywood director Rob Reiner. Supporters of ProtectMarriage.com, Prop. 8’s defender, also found coveted courtroom seats.

With both liberal and conservative justices particularly worried about a broader ruling that might apply to all states, 37 of which now ban gay marriage, the court pressed lawyers on both sides about how far they should go.

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