San Jose, Calif. 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 in the courtroom were evident, 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 major concerns with 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 courts 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.