It has taken four years, but the fierce conflict over gay marriage has finally shifted from its cradle at San Francisco City Hall to the California Supreme Court, just a few hundred yards away.
The state's high court on Tuesday will consider three hours of legal argument in a series of cases that challenge California's ban on gay marriage and a 2000 voter-approved ballot initiative that defines marriage as a union between a man and woman.
The Supreme Court's intervention has been inevitable since February 2004, when San Francisco Mayor Gavin Newsom ignited a national furor by giving same-sex couples the short-lived right to marry at City Hall. But now that the justices have the issue in their hands, the outcome is anything but predictable - and the stakes for all corners of the divisive social issue could not be higher.
With a string of court losses in other states in recent years, gay marriage supporters could be looking at their legal Waterloo if they lose in the California Supreme Court. At the same time, a ruling favoring gay marriage in the nation's largest state with by far the largest population of same-sex couples could be an influential boost to the right of gay couples to wed. Such a ruling could be overturned only at the ballot box.
For the Supreme Court, this could be a case so politically explosive it might expose the justices to political backlash. Conservative groups
"I can't overstate the importance of California," said Shannon Minter, legal director for the National Center for Lesbian Rights. "It will have a monumental impact for decades to come."
The Republican-dominated Supreme Court is generally considered conservative, but it has had a notable moderate streak on social issues. The court, indeed, has strengthened gay rights in a number of rulings, including a 2005 decision establishing new legal protections for gay partners in child custody battles.
"I suspect the court is divided on it and it is hard to figure out where they'll come out," said Michael Wald, a Stanford University law professor.
The Supreme Court is reviewing arguably one of the state's most important civil rights cases since 1948, when the court became the first in the nation to outlaw a ban on interracial marriage. That ruling remains the leading precedent cited by civil rights lawyers for overturning today's ban on gay marriage.
A divided 2006 ruling by a San Francisco appeals court upheld the state's gay marriage ban, concluding that it is up to the voters or Legislature to decide whether gay couples can wed, not judges. That ruling overturned a San Francisco trial judge, who declared the state law unconstitutional. The Supreme Court is reviewing the appeals court decision.
The case traces back to Newsom's decision to issue marriage licenses to thousands of same-sex couples before the Supreme Court ordered him to stop. San Francisco officials and gay rights groups responded with a broad attack on the law, arguing that it violates California's constitution because it fails to treat same-sex couples the same as heterosexual couples.
"There have been wins; there have been losses," said San Francisco City Attorney Dennis Herrera, who is leading the city's challenge to the law. "But in terms of public opinion and where things are going, I'm comfortable that we're making progress."
Attorney General Jerry Brown and Gov. Arnold Schwarzenegger are defending the ban, although in a far more restrained fashion than gay marriage foes would like. The state simply argues that same-sex couples already enjoy equal rights under California's strong domestic partnership laws, steering clear of the social debate over gay marriage.
Several conservative organizations are arguing separately in the Supreme Court, insisting in court papers that overturning the gay marriage ban would undermine the institution of marriage. Among other things, they argue that marriage is based on the ability to procreate and by definition must exclude same-sex couples.
A number of conservative legal scholars say the Supreme Court must address that issue.
"What's the state's interest in limiting marriage to a certain category of people if not that?" asked Doug Kmiec, a conservative Pepperdine University law professor. "It's non-existent."
In addition to the central players, the legal battle has attracted an almost unprecedented avalanche of briefs from organizations and scholars on both sides. The city of San Jose and Santa Clara County joined one on behalf of local governments backing same-sex marriage.
The Supreme Court has hinted at its focus in several questions sent to lawyers in the case. These include the legal differences between marriage and the domestic partners law and the scope of constitutional protections for the "fundamental right" to marry.
"The California case presents the ultimate issue," said Pepperdine's Kmiec. "This is enormously important politically because of the state's size, its influence and because it presents the issue in a way it really hasn't been presented elsewhere."
Contact Howard Mintz at firstname.lastname@example.org or (408) 286-0236.