WASHINGTON — After two decades in which gay rights moved from the margin to capture the support of many Americans, the Supreme Court justices this week will decide if now is the time to rule on whether gays and lesbians have a constitutional right to marry.
For the justices, the issue is not just what to decide, but when to decide it. The court has been faulted for waiting too long or moving too quickly to recognize constitutional rights.
The justices did not strike down state bans on interracial marriage until 1967, 13 years after they had declared racial segregation unconstitutional. Yet in response to the growing women's rights movement, the court in 1973 struck down all the state laws restricting abortion, triggering a national "right to life" movement and drawing criticism even from some supporters that the Roe vs. Wade ruling had gone too far too fast.
Now, the justices must decide whether to hear an appeal from the defenders of California's Proposition 8, the 2008 voter initiative that limited marriage to a man and a woman.
At the same session Friday, the court will sift through several appeals to decide whether legally married gay couples have a right to equal benefits under federal law. Appeals courts in Boston and New York have struck down a part of the Defense of Marriage Act that says they do not, and the justices are likely to take up a case to resolve that question.
The Proposition 8 case, known as Hollingsworth vs. Perry, presents justices with the more profound "right to marry" question.
Opinion polls show a majority of Americans favor marriage equality. On Nov. 6, voters in three states — Maine, Maryland and Washington — approved same-sex marriage, bringing the total to nine states.
Does the shift in public opinion suggest the court should uphold gay marriage now, or wait for more states, perhaps a majority, to legalize it?
The defenders of Proposition 8 say their case "raises the profoundly important question of whether the ancient and vital institution of marriage should be fundamentally redefined," and in this instance, by federal judges.
A federal judge in San Francisco struck down Proposition 8 as discriminatory and irrational. In February, the 9th U.S. Circuit Court of Appeals affirmed that by a 2-1 vote, ruling the ban on gay marriage violated the Constitution's guarantee of equal protection of the laws. The majority relied heavily on a 1996 opinion by Justice Anthony Kennedy that had struck down an antigay initiative adopted by Colorado voters.
The decision on whether to hear the case could be a hard call for the court's conservatives and liberals.
Usually, the justices are inclined to vote to hear a case if they disagree with the lower court ruling. The most conservative justices — Antonin Scalia, Clarence Thomas and Samuel Alito — almost certainly think the 9th Circuit's ruling was dubious. Scalia, for example, says the "equal protection" clause, added to the Constitution after the Civil War, aimed to stop racial discrimination and nothing more.
If Chief Justice John Roberts joins the other three, the conservatives would have the needed four votes to hear the Proposition 8 case.
They may hesitate. To form a majority in a later ruling, they would need Kennedy, the author of the court's two strongest gay rights rulings. His 2003 opinion struck down a Texas antisodomy law and said the state could not "demean" gays by treating them as second-class citizens. Five months later, the Massachusetts Supreme Court, citing Kennedy's opinion, became the first to rule that gays and lesbians had a right to marry.
If the court were to take up the Proposition 8 case, Kennedy might control the opinion.
"If you care about history and your legacy, that must be pretty tempting, to write the court's opinion that could be the Brown vs. Board of Education of the gay rights movement," said Michael Klarman, a Harvard legal historian, referring to the 1954 case that barred state-sponsored segregation of public schools.
Still, the court's liberals also may hesitate. Justice Ruth Bader Ginsburg, though a leading women's rights legal advocate, has said she thought the court made a mistake in the 1970s by moving too fast to declare a national right to abortion.
If the court votes to hear the California case, it will be decided by late June. If the appeal is turned down, it means gay marriage will become law in California, due to the 9th Circuit's decision. The court may also put off a decision on the Proposition 8 case until the justices have decided on the constitutionality of the Defense of Marriage Act.
Many legal experts, including gay-rights advocates, hope the justices will avoid a decision on the right to marry for now and take a wait-and-see approach.
"The court is probably reluctant to impose same-sex marriage on the entire country right now. So, this is an excellent time for them to shut up and do nothing," said Andrew Koppelman, a Northwestern law professor.
The defenders of Proposition 8 argue the Constitution "leaves the definition of marriage in the hands of the people, to be resolved by the democratic process in each state."
Ted Olson, the conservative Washington lawyer who joined David Boies to lead the legal attack on Proposition 8, says he is torn over whether the Supreme Court should hear the case.
"We won the case, and if they don't take it, our clients have won. They will be allowed to marry," Olson said. "But if they take the case, it could lead to a broader victory. We believe gays and lesbians have a constitutional right to be treated equally. And if it is a constitutional right, you shouldn't have to try to win at the ballot box in every state."