WASHINGTON — The Supreme Court Tuesday raised the prospect that it will decline to say whether the Constitution gives gays the right to marry, in an argument that revealed a chasm among the justices on one of the country's most divisive issues.
A decision to back out of the case would be an anticlimax to a clash billed as potentially the biggest civil-rights dispute in decades. It would let same-sex marriage resume in California, without directly affecting the rest of the country.
Justice Anthony Kennedy, often the court's swing vote, twice asked whether the most prudent course would be not to rule in the case, which centers on California's Proposition 8, a voter-approved ban on gay marriage. He said the case was taking the court into "uncharted waters."
"I just wonder if the case was properly granted," Kennedy said during the 80-minute session Tuesday in Washington. He suggested the appeals court decision striking down Proposition 8 was too narrow to warrant a high court ruling on the sweeping questions in the case.
The argument comes as public support for gay marriage hits record levels. Nine states and the District of Columbia now let gay couples marry. President Barack Obama backs same-sex marriage, and his top Supreme Court lawyer urged the court to overturn Proposition 8.
The high court has a spectrum of options. It could reinstate California's ban, known as Proposition 8, and leave each state to make its own decision about letting gays marry. It could issue a narrow ruling that would create a right to gay marriage in California and perhaps a handful of other states. Or it could announce a constitutional right to gay marriage nationwide.
The court could also sidestep the marriage issue by ruling on procedural grounds. The justices spent about 20 minutes today debating whether the supporters of Proposition 8 have "standing" to defend it on appeal. A ruling that they don't would reinstate a trial judge's decision declaring Proposition 8 to be unconstitutional.