For nearly four years, proponents of same-sex marriage have been strategically building a test case aimed at convincing the conservative-leaning U.S. Supreme Court to declare that gay marriage is a constitutional right. The advocates felt they were ready.
But on Tuesday, after an intense, wide-ranging hearing, it appeared the justices were not.
Over the course of the 80-minute session, it seemed that for the array of gay rights supporters across the country, neither their greatest hopes nor worst fears would be realized.
A majority of the justices suggested by their comments and questions that they were not prepared to rule on whether a fundamental right exists for gays and lesbians to marry. Some justices even suggested that the specific case before them, testing the validity of a 2008 California ballot initiative that defined marriage as only between a man and woman, might not be resolved on the merits.
The justices return to the bench on Wednesday for the narrower question of whether the federal government may deny benefits to married same-sex couples that are allowed their opposite-sex counterparts.
The court has several options on how it might resolve that case, from a finding that the Republican-dominated congressional group defending the law lacks “legal standing,” resulting in dismissal, to a decision striking down the provision and robustly declaring that all laws tied to sexual orientation deserve tough judicial scrutiny.
That latter stance could eventually pave the way for gay marriage laws nationwide, well beyond the nine states and District of Columbia that now allow it. But from the tone of arguments on Tuesday, a majority would likely resist that route.
Justices across the ideological spectrum suggested they wanted to tread a cautious path in the cases that have become the most closely watched of the term.
The white marble and crimson velvet courtroom was crowded with nearly 400 spectators, some of whom had waited since last Thursday, in snow and rain, for seats. The paired cases have drawn a record number of “friend of the court” briefs and become the occasion for near daily declarations in support of gay marriage from public figures and prominent organizations.