In hearing a challenge to California's Proposition 8, Supreme Court justices seemed Tuesday to be shying away from deciding the real issue before them.
But on this question of fundamental equality and fairness, the court cannot be timid. This case presents a historic opportunity to declare that same-sex couples across the nation have the same constitutional right to marry as other Americans.
Outside the court's hallowed chambers, society is already moving in this direction. Polls show growing support for same-sex marriage, reaching a majority in 2011. The views of many Americans have evolved as they have more personal experience with gay co-workers, friends and relatives.
A Field Poll last month found 61 percent of California voters back gay marriage. If Proposition 8 appeared on the ballot now, it seems likely the outcome would be different than in 2008, when 52 percent approved the ban on same-sex marriage.
Swimming against this tide, Proposition 8 supporters do a disservice by resorting to spurious arguments.
Their lawyer told justices Tuesday that marriage should be between one man and one woman because it is in the state's interest to encourage having and raising children. Procreation has never been a prerequisite for legally sanctioned marriage.
Charles J. Cooper also argued that "genderless" marriage could eventually damage the institution of matrimony. Where's the proof? With the number of divorces and children born out of wedlock these days, one could easily argue that committed gay couples will strengthen marriage in our society.
A more reasonable argument Cooper made is that the Supreme Court should not pre-empt the "democratic debate" on such "an agonizingly difficult issue." Nine states now allow same-sex unions; in November, Maine, Maryland and Washington state became the first to approve gay marriage by popular vote.
Several justices, both liberals and conservatives, reflected the concern about moving too quickly. Justice Anthony Kennedy of Sacramento, who could be the swing vote again, wondered aloud whether the court should have taken this case in the first place. He said the court was venturing into "uncharted waters" by weighing the consequences of allowing gay marriage.
"We have five years of information to pose against 2,000 years of history or more," Kennedy said.
Yet, he also expressed sympathy for nearly 40,000 California children who live with gay couples and want full recognition for their parents. In two previous rulings, he protected gays and lesbians.
He and other justices have a wide range of options for the decision they are expected to issue in June.
They could reinstate Proposition 8. They could allow gay marriage in California, but not mandate it in any other state. They could do as the Obama administration suggests require same-sex marriage only in California and seven other states that already provide gay and lesbian couples all the legal benefits of marriage through civil unions or domestic partnerships. Or they could do the right thing and issue a nationwide ruling against discrimination and in favor of same-sex marriage.
Theodore B. Olson, representing those against Proposition 8, told justices that it "walls off gays and lesbians from marriage, the most important relation in life" and labels "their most cherished relationships as second-rate, different, unequal."
The same is true for those who live in the 39 states that ban gay marriage. That is not equal protection under the law guaranteed by our Constitution. Our highest court can no longer avoid that truth.