The 9th U.S. Circuit Court of Appeals has a hard-won reputation for issuing sweeping, precedent-setting and liberal rulings that are often overturned by the more conservative U.S. Supreme Court.
With liberal icon Stephen Reinhardt as its lead author, one might expect a three-judge appellate panel not only to strike down Proposition 8, California's 2008 anti-gay marriage measure, but to declare a fundamental constitutional right for gays and lesbians to marry.
Had it done so, it likely would have invited another Supreme Court reversal.
Instead, Reinhardt showing uncharacteristic constraint sidestepped the larger constitutional rights issue cited in the trial court ruling, saying, "We need not and do not consider whether same-sex couples have a fundamental right to marry."
Rather, the 2-1 decision struck down Proposition 8 on narrow, legalistic grounds with words that seemed to be aimed at an audience of one U.S. Supreme Court Justice Anthony Kennedy.
Tuesday's ruling quoted extensively from a 1996 Kennedy-authored decree in Romer v. Evans striking down an anti-gay rights ballot measure in Colorado as being unconstitutionally discriminatory. That decision was 6-3, but the Supreme Court has since evolved into a 4-4 tie between liberals and conservatives with Kennedy often casting the decisive vote in contentious cases.
Reinhardt's opinion said that when the California Supreme Court overturned an earlier anti-gay marriage measure and allowed same-sex couples to marry, it established a right that Proposition 8 then sought to cancel, thus violating the equal protection clause of the U.S. Constitution.
Gov. Jerry Brown played no small role in Tuesday's outcome. The appellate panel noted that the official Proposition 8 ballot title, prepared by Brown's office in 2008 when he was attorney general, said it would "eliminate" gays' right to marry. Those words enraged Proposition 8's backers at the time and came back to haunt them Tuesday.
"Proposition 8's only effect was to withdraw from gays and lesbians the right to employ the designation of 'marriage' to describe their committed relationships," the ruling declared, concluding, "the people of California violated the equal protection clause."
Assuming that the case reaches the U.S. Supreme Court and that Kennedy is the deciding vote on the issue, would he agree?
Kennedy, a Sacramentan who worked for then-Gov. Ronald Reagan, is notoriously unpredictable, sometimes siding with the four liberals on the court and sometimes with the four conservatives.
But even were he to help overturn Proposition 8, the larger issue of whether same-sex couples have a constitutional right to marry would remain unclear.
That would take another case and another day.