The Supreme Court could
be poised to make a historic decision if it overturns California's ban on same-sex marriage and affirms a legal precedent that would apply nationwide.
It also could rule in favor of Proposition 8, the voter initiative that banned same-sex marriages, or it could opt for a third option: Dismissing the case on the grounds that gay marriage opponents have no legal standing to defend the ban in court. That would sustain a lower court ruling in favor of same-sex marriage, allowing gay unions to resume in California, but without setting a precedent anywhere else.
As the court heard arguments in the case Tuesday, several of its members, including Justice Anthony Kennedy, a potential swing vote, raised the possibility of dismissing the case without ruling on it. The high court could dodge a landmark decision, at least for the time being, without, as Kennedy put it, wading into "uncharted waters" on gay marriage.
Same-sex couples in California briefly had the legal right to marry before voters adopted a constitutional amendment in 2008 that defined marriage as the union of a man and a woman. Thirty states, including Ohio, ban same-sex marriage while nine states and the District of Columbia have legalized it.
Those arguing in defense of same-sex marriage cast the issue before the high court in terms of equal rights. Opponents contend that the institution of marriage must be limited to two partners of different gender. Regardless of how the court rules, many will be dissatisfied with the outcome.
Theodore Olson, the former Bush administration solicitor general representing two same-sex couples in the California case, contended in his argument before the high court that justices had faced a similar situation in 1967 when the court struck down bans on interracial marriage in 16 states.
Interracial marriage was still an emotional flashpoint for many when that ruling was issued. The passing of nearly 50 years has seen a change in attitudes toward it as interracial unions have become increasingly commonplace.
Perhaps the same change will occur with same-sex marriages. The tide is turning at the ballot box. Last fall, voters in Maine, Maryland and Washington became the first in the nation to approve gay marriages, while those in Minnesota turned down a ban on same-sex unions.
The high court could acknowledge this by sidestepping a ruling in the California case, opting to let the issue evolve on its own. That may not be the ideal outcome for either side, but it's an alternative that a divided court may choose.