The California Supreme Court is seemingly as divided as society is over gay marriage.
For more than three hours Tuesday, the seven justices of the state's high court shifted back and forth on whether to uphold California's ban on same-sex marriage, at times appearing to spar with each other as they weighed their most important civil rights case in decades.
The justices peppered lawyers on both sides of the case with dozens of questions that made predicting an outcome a fool's game. The court is reviewing a similarly divided 2006 appeals court ruling that upheld California's ban on gay marriage and a 2000 ballot initiative confining marriage to a union between a man and woman.
Underscoring the passions behind the conflict, demonstrators on both sides of the issue lined up outside the Supreme Court building, armed with placards and chants as they awaited the crucial legal arguments. Inside, an overflow crowd unable to get a seat in the courtroom jammed a downstairs auditorium to watch the arguments on a big-screen television, a boisterous group that cheered and jeered as though attending a high school basketball game.
But the stakes were evident in the courtroom, as the justices aired their first public views in a case they must decide within 90 days. Justices Marvin Baxter and Ming Chin, perhaps the court's most conservative members, seemed to have the deepest reservations about siding with civil rights groups and San Francisco city officials, who argue that the ban violates the equal-protection rights of gay and lesbian couples seeking the power to wed.
But Baxter and Chin were also frequently joined by Justice Carol Corrigan, a moderate who expressed sympathy with the civil rights argument but had major concerns over tampering with the will of the voters. Corrigan indicated several times she may agree with the majority in the appeals court ruling. That court found the Legislature or voters should decide whether to change marriage laws, not judges.
"Our views on this topic are in the process of evolution," Corrigan said to Therese Stewart, San Francisco's chief deputy city attorney, who argued in favor of gay marriage. "There is substantial difference of opinion about what that evolution should look like. Who decides where we are in California in that evolution?" she asked. "Is it for the court to decide or the voters to decide?"
Other justices, however, hinted they have an obligation to intervene if the ban is unconstitutional. The justices repeatedly invoked another milestone marriage case - a 62-year-old California Supreme Court ruling that outlawed a ban on interracial marriage. At that time, it was the first court in the nation to strike the practice down as discriminatory.
Reading aloud from the 1946 ruling, Chief Justice Ronald George focused on a phrase that said marriage is a right to wed "a person of one's choice," without any reference to a man and a woman. George, often a crucial vote when the court is split, also relied heavily on recent U.S. Supreme Court rulings that have broadened the rights of same-sex couples, notably a 2003 decision that struck down Texas' anti-sodomy statutes.
Justice Joyce Kennard also expressed skepticism that the court should wait for the voters or legislators to remedy discrimination, noting that Gov. Arnold Schwarzenegger already has twice vetoed legislation that would permit gay marriage.
Deputy Attorney General Christopher Krueger defended the law, arguing that the state's strong domestic-partners provisions already provide equal rights to gay and lesbian couples. But that argument drew a lukewarm response from at least some of the justices.
"Are we saying separate is equal here?" Justice Carlos Moreno asked.
Lawyers defending Proposition 22 also found themselves on the hot seat when they tried to insist that permitting gay couples to wed would undermine traditional heterosexual marriage. At various points, Kennard, George and Corrigan all openly questioned that argument.
But Corrigan and Chin also pressed civil rights lawyers on why the state can't limit marriage. "Why doesn't the same argument apply to somebody who wants to marry two people?" Chin asked. And Corrigan interjected, "Or their cousin?"
The justices have 90 days to rule on the epic legal battle, which began to unfold four years ago when San Francisco Mayor Gavin Newsom gave same-sex couples the short-lived right to marry at City Hall. Similar legal challenges have cropped up in other states, where courts have for the most part upheld bans on same-sex marriage and other bans have been put in place at the ballot box.
In contrast to the courtroom's staid, intellectual atmosphere, the auditorium and the crowd outside after the hearing were raucous at times. Outside the court, some demonstrators waved anti-gay placards while same-sex couples chanted for their right to marry. Belinda Ryan, a Fremont woman, held up a picture of her partner and child that read: "Justices please protect my wife and baby with your decision."
In other words, they were as divided as the justices.
Both sides expressed optimism about the outcome.
"I'm pleased with the line of questioning I saw from a number of justices," said San Francisco City Attorney Dennis Herrera.
Conservative groups opposed to gay marriage repeated their vow to take the issue to the voters if the Supreme Court overturns the same-sex marriage ban.
Said Glen Lavy, who defended the ban for the Alliance Defense Fund: "What the court is being asked to do is shortchange the democratic process."
Mercury News staff writer Mike Swift contributed to this report. Contact Howard Mintz at firstname.lastname@example.org or (408) 286-0236.