Supporters and opponents of gay marriage were left to read the tea leaves Tuesday, following oral arguments before the Supreme Court on the constitutionality of the Proposition 8 California gay marriage ban passed by voters.
Both sides expressed optimism that their arguments would prevail in the legal battle that first hinges on whether or not those backing the Supreme Court appeal of a lower court ruling have the right to do so and then whether or not the ban is constitutional.
"There were a number of thoughtful and tough questions to both sides, it's now in the hands of the Supreme Court," said David Boies, one of the two lawyers who argued against the ban before the court. "I think we are all greatly encouraged that we are within a few months of a final decision on this terribly important case."
Boies, speaking to reporters from the steps outside the courtroom following the arguments, said he considered it a victory that the opposition relied on arguments calling for the states to decide the issue, rather than against the idea of gay marriage at all.
"The most important thing that happened in there is that there was no attempt to defend the ban on gay and lesbian marriage," he said. "There was no indication of any harm. All they said in there was that this important constitutional right ought to be decided at the state level as opposed to the federal government."
John Eastman, a law professor at Chapman University and the chairman of anti-gay marriage group the National Organization for Marriage, was equally pleased following the conclusion of the arguments.
"I think at the end of the day there's a majority of the court that will uphold the jurisdiction of the initiative proponents," he says. "I think that the merits of the issue remain fairly evenly split, but if I were to make my predictions, I think there's 5 [votes] to 4 votes to uphold Proposition 8."
He echoed Boies' assessment of the legal argument made for supporting the ban – that it should be a states' right issue and not one that concerns the U.S. Constitution. If proponents of gay marriage can persuade voters at the state level to support it, then that's the proper process, Eastman says.
"If public opinion goes that way and they are able to persuade fellow citizens to do what Maine and Maryland did the last election, so be it," he says. "If they lose that fight as they have in the 35 other states that have gone that direction, it's because this is not a constitutional issue but a basic policy issue about the purposes of marriage and the risk for that institution if we radically re-define it."
Legal analysts in the court for the arguments cast doubt on whether or not the court would answer the constitutional question.
Tom Goldstein, a professor at Stanford and Harvard Law Schools and writer at SCOTUSblog, said he detected doubt among several justices that the case had "standing."
"The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional," he wrote on the blog immediately following the arguments.
If the court decides the case lacks standing that would leave a district court ruling in place, which would overturn the gay marriage ban, Goldstein said. Alternatively, the court could "dismiss the case because of an inability to reach a majority."
A decision isn't expected to be announced until sometime in June. On Wednesday, the court is scheduled to hear arguments on the federal Defense of Marriage Act that prohibits federal benefits to spouses in same-sex marriages.