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

The Court could issue a ruling that allows states to decide on marriage equality.
 
 
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Today, the Supreme Court agreed to hear a landmark case challenging the constitutionality of California's ban on gay marriage. The California case, brought by Supreme Court superstars Ted Olson and David Boies, was designed from the beginning to obtain a bold, revolutionary ruling by the justices declaring gay marriage a constitutional right.

If Olson and Boies -- who famously went head-to-head in the notorious Bush v. Gore case -- win, it could mean that all bans on gay marriage, everywhere in the country, will be overturned. Gay and lesbian people from Beverly Hills to Bangor will finally enjoy an equal right to marry the person they love.

Yet don't count on a game-changing decision too quickly. It's more likely that Olson and Boies' blockbuster will end with a whimper.

Olson and Boies are right that in the closely divided Court, the justices' sentiments are with them. Four justices are likely to support marriage equality -- Stephen Breyer, Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan -- and three justices equally certain to oppose it: Antonin Scalia, Clarence Thomas, and Samuel Alito.

That leaves two potential swing votes: Chief Justice John Roberts and Justice Anthony Kennedy.

Roberts is very firmly in the conservative camp on nearly every hot-button issue that comes before the Court. He's voted with the right wing of the Court to strike down affirmative action plans, restrict access to abortion, deny victims of discrimination back pay and allow corporations to spend unlimited amounts of money on elections. Given that track record, Roberts seems likely to vote to uphold bans on gay marriage.

But then there's the Obamacare case. His vote to uphold President Obama's healthcare law went against his typical pattern in controversial cases. No one knows why he cast his vote the way he did in that case -- few legal experts give much credence to his argument that the law was a tax -- but the most likely possibility is that Roberts sincerely worries about the institutional legitimacy of the court he shepherds. Roberts must know that long before his tenure as chief justice is up in 25 years or so, any decision by the court upholding bans on gay marriage will seem retrograde and foolish. That won't stop Scalia and Thomas, but it might stop Roberts.

Kennedy is a Catholic appointed by President Ronald Reagan, so one might predict he'd be hostile to claims of gay marriage. Kennedy, however, voted in favor of equality in the Supreme Court's two biggest gay rights cases of the past twenty years, Romer v. Evans and Lawrence v. Texas. The first case, from 1996, overturned a Colorado law that barred cities like Denver and Aspen from enacting anti-discrimination protections for gay and lesbian Americans. The second, from 2003, struck down a Texas ban on same-sex sodomy among consenting adults. The opinions in both cases were written by Kennedy.

Yet, even for Kennedy, gay marriage may be a bridge too far. And Olson and Boies' case, despite being carefully and strategically crafted to goad the Supreme Court into ruling on the constitutionality of gay marriage nationwide, has a number of escape routes for Roberts and Kennedy.

There might even be some surprising reluctance from the left wing of the Court. Take Ruth Bader Ginsburg. There's little doubt she'd like to strike down bans on gay marriage, but she may prefer to go slow. Ginsburg, who cut her teeth as a women's rights advocate, has criticized Roe v. Wade, the abortion decision, for going too far too fast. She supports abortion rights but has argued that if the Court had issued a more narrow ruling in Roe, we might not have seen the tremendous backlash sparked by the decision. Abortion rights might well have grown through the political process instead.