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Originally published Saturday, December 8, 2012 at 8:36 PM

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Gay activists weigh possibilities of marriage ruling

Gay activists show signs of concern that the Supreme Court could find that there is no constitutional protection for same-sex marriage.

The New York Times

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LOS ANGELES — Within moments of the announcement Friday that the Supreme Court would hear two cases relating to same-sex marriage, gay activists rejoiced, heralding the decision as a major advancement for their movement.

"Today's news is nothing short of a milestone moment for equality," said Chad Griffin, a champion of the legal challenge to Proposition 8, the California initiative passed in November 2008 that banned same-sex marriage and is headed to the Supreme Court.

Yet amid the celebration, there were signs of concern over how the Supreme Court might rule.

That the Supreme Court is hearing the cases doesn't mean it is about to ratify same-sex marriage. As supporters and opponents said in interviews, the court might use these cases to find that there is no constitutional protection for same-sex marriage.

"There is no question that it is a risk," said Lt. Gov. Gavin Newsom of California. "If they nationalize it and reject it, that's going to take decades to come back to the court."

When he was the mayor of San Francisco, Newsom began issuing marriage licenses to same-sex couples about a month after his election in 2004 until he was stopped by the courts.

Newsom said he trusted the counsel of the high-profile lawyers for the plaintiffs, David Boies and Theodore Olson, that this time and this court were right for the case.

"I'm going to defer to their expertise rather than my instincts," Newsom said. "I think it's worth the risk."

Jubilation was tempered with apprehension as the implications of the decision were discussed nationwide.

"That the Supreme Court is taking this up is truly exhilarating, but I'm very nervous and unnerved by the possibilities of what could come out of this," said Don Romesburg, 42, an associate professor of women and gender studies at Sonoma State University.

"It is frightening to have our basic rights as citizens in the hands of just nine people, when four or five of them are deeply ambivalent, at best, about our very existence," said Romesburg, who legally married his male partner during the window before Proposition 8 was passed.

When Griffin, who now heads the Human Rights Campaign, and other California gay-rights leaders sought to overturn Proposition 8, they were criticized by some gay-rights groups that were fearful that the Supreme Court would rule against them.

"An unsuccessful challenge may delay marriage even longer, not only in California but in other states, and seriously damage the rights" of gay men and lesbians on a range of issues, the groups said in May 2009. The organizations, which included the Human Rights Campaign and Lambda Legal, cautioned against "premature" legal action.

But Griffin said he was always confident of victory.

"Look, we wouldn't have filed this case were we not optimistic that once this case finally reached the Supreme Court that it would come down on the side of liberty and equality," he said.

Evan Wolfson, president of Freedom to Marry, said the legal victories in the past four years had created a different environment for the Supreme Court from when gay leaders battled over the wisdom of bringing this challenge.

"Since then, we've made enormous progress and built irrefutable momentum, winning the freedom to marry in state after state and winning over a solid majority of support in this country," he said.

Kate Kendell, executive director of the National Center for Lesbian Rights, which initially opposed court action, said she now expected the court to rule in favor of same-sex marriage.

"There is no doubt that the wind is at our backs," she said. "We've hit a tipping point on this issue. I think we are better positioned than ever."

In Atlanta, Josh Bergeleen, 20, a junior at Emory University, said he was not concerned about the outcome.

"Yes, it's a very conservative court," he said. "But momentum is moving in favor of gay marriage."

Romesburg of Sonoma State University said he was more concerned about the future.

"My gut says that the next six months are going to be really hard," he said. "When I heard the Supreme Court would consider Prop 8, my initial feeling was 'Here we go again.' "

In Cambridge, Mass., Kevin McDonald, 26, a graduate student at Harvard University, said he was "pretty excited" to hear about the decision, but drew comparisons to the unwelcome ramifications for the abortion-rights movement.

"I'm not sure we're there yet — we're making really good progress — but I don't want to see that progress impeded somehow, with a ruling that makes people feel like they don't have control over something so fundamental like marriage," he said.

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