Supreme Court Takes Gay Marriage Case, But Don't Hold Your Breath For An Epic Ruling

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Gay marriage is similar. There's a risk of backlash from a bold opinion and, if the Court stays its hand, the political process is clearly trending towards allowing gay and lesbian Americans to marry.

One way the Court may skirt a bold ruling is procedural. The justices could rule that the case was not defended by the right party and remand the controversy to the lower courts. Usually when there's a challenge to a state law -- like California's Proposition 8 -- the state's attorney general goes to court to defend it. In Olson and Boies' case, however, California's attorneys general and governors have steadfastly refused to defend the law, which they've argued is discriminatory. With no one else to defend the law, the trial court allowed the group that put Proposition 8 on the ballot to substitute for the state government.

This was controversial because the group doesn't satisfy the usual requirement that a party to a case have an unusual, highly individualized interest in the case that's different than the average citizen. Indeed, in a Supreme Court case decided not long ago, the justices suggested that initiative backers are not appropriate parties to defend a state law. So don't be surprised if the justices declare that Olson and Boies' case was never properly defended and remand it to the lower courts to try again.

Another out for the Court would be to allow gay marriage in California alone. Rather than issue a landmark ruling that mandates all states to permit gay individuals to marry, the Court could focus on the particular facts of Proposition 8. What's different about California is that the state at one point allowed gay marriage. After the state Supreme Court held that California's own constitution required marriage equality, approximately 18,000 gay and lesbian couples were married in the state. Proposition 8 changed California's constitution to prohibit further gay marriages -- effectively taking away a right that gay and lesbian citizens already had.

The justices might well rule that taking away a right is substantively different from refusing to extend a right in the first place, in which case the existing bans on gay marriage in other states will stand.

This latter approach was the one taken by the court of appeals in the Olson and Boies case. Even though written by legendary uber-liberal Stephen Reinhardt, who prides himself on being to the left of nearly every other federal judge in America, the court of appeals' opinion carefully avoided declaring gay marriage a constitutionally protected right for all Americans. Reinhardt's opinion hewed closely to the language and reasoning of Kennedy's opinion in the Colorado case from 1996, saying the problem with California's law was in how it was enacted.

If the Supreme Court takes either tack -- turning back the challenge for procedural reasons or limiting its ruling to California -- it will still be a victory for gay rights, even if it is less than Olson and Boies were originally hoping for. If the justices say Proposition 8's backers weren't appropriate parties, the case would be returned to the lower courts. California's attorney general and governor, however, are certain to refuse to defend the law, which means a victory for Olson and Boies. Gay marriage would then be legal in California.

If the justices cabin their ruling to California alone, that too would allow California to begin allowing gay couples to marry.  Either way, tens of thousands of LGBT people would gain the right to marry.

That would be a major victory for gay rights, though not the bold and revolutionary one Olson and Boies originally sought.