The presiding question after Proposition 8's 2-1 defeat last week in the 9th U.S. Circuit Court of Appeals is simple: If an appeal is filed, will the U.S. Supreme Court take the case or take a pass?

The answer is: Yes, to both.

Contemplating the high court's next move is like playing chess: Many moves are possible. Still, it's a worthy exercise and, in this case, an amusing side bet, since arguments also sideswipe the timeworn charge of judicial activism.

Critics quickly assailed last week's ruling as one from "activist judges." Of course they criticized it. They lost. That's the definition of an activist judge: Someone who ruled in a way you don't like. It's a nice polemic to get angry people angrier, but at best it's a convenient canard. Mostly, it's just baloney.

Almost conspiratorially, critics noted that 9th Circuit Judge Stephen Reinhardt based his majority opinion almost entirely on Romer v. Evans, a 1996 U.S. Supreme Court decision authored by Justice Anthony Kennedy, the court's swing vote. A-ha! Reinhardt targeted his ruling specifically at getting Kennedy's approval! After all, we know how the liberal wing of the high court will vote on gay marriage, and we know Kennedy won't vote against his own opinion in Romer. Ergo, in this plotline, the Supreme Court will rule in favor of gay marriage.

But isn't it possible the court's four conservative justices would rather avoid this case for the same reason: Kennedy will swing the vote 5-4? Might Antonin Scalia or Clarence Thomas try to persuade a liberal colleague or two to deny an appeal? For instance, they might claim the 9th Circuit's California-only focus is too narrow for Supreme Court review – not an overwhelmingly compelling argument, but a legitimate one, particularly if you were on the losing side in Romer, as both Scalia and Thomas were.

So who's the activist judge? Reinhardt for targeting Kennedy, or the high court's conservatives who'd rather pass on the case knowing the outcome would favor something they might oppose, gay marriage?

Or is it 9th Circuit Judge N. Randy Smith, who wrote the dissent in the court's Proposition 8 ruling? Critics – a.k.a. the losing side – called U.S. District Judge Vaughn Walker an activist judge over his August 2010 opinion against Proposition 8 because he's gay. Why didn't a self-described "devout Mormon" Judge Smith recuse himself, given the Mormon Church was the main financial backer of Proposition 8? He certainly wouldn't be able to face his fellow parishioners had he ruled against it. Conversely, had the 9th Circuit upheld Proposition 8 with a majority opinion authored by Smith, would we not have heard cries of activism from liberal quarters?

Reinhardt's emphasis on Romer makes perfect legal sense.

In Romer, Colorado voters had adopted an initiative that did two things: Voided all local ordinances protecting gays from discrimination based on sexual orientation and prohibited local governments from passing similar anti-discrimination laws in the future. By a 6-3 vote, the Supreme Court declared the Colorado law unconstitutional because it singled out gays for unfair treatment and took away legal rights granted them at the local level. The high court's first-ever ruling in favor of gays on a discrimination claim.

In California, Reinhardt focused on the 5-month period when gay marriage was legal here – between the time the state Supreme Court ruled such a right was protected by California's Constitution and the passage of Proposition 8, which revoked that right. In that time, 18,000 gay couples married.

Not only did the appellate court rule it unconstitutional, as Romer did, to take away a right already granted, Proposition 8's passage created three separate classes: Legally married heterosexuals, legally married gays and gays who legally can't get married. The 9th Circuit saw all this as a violation of the 14th Amendment's Equal Protection Clause.

That's a very different argument than Walker's ruling that the Constitution protects the rights of all same-sex couples to marry, which the 9th Circuit did not address.

The Supreme Court may not care to review something so California-specific, instead preferring a broader case affecting the entire country.

Then again, a high-profile issue contested in an influential, trend-setting state like ours might prove too tempting for the justices to resist.

Even the attorneys who litigated against Proposition 8 don't agree. David Boies told reporters the "grounds do make it somewhat less likely that the Supreme Court will take it," according to MetroWeekly, a D.C.-based gay publication. Yet Boies' co-counsel Ted Olson told the Talking Points Memo blog the court might grant an appeal, "especially since parts of the opinion can be more broadly applied."

Proposition 8's defenders have one week left to appeal to the full 9th Circuit. You get 90 days to appeal to the Supreme Court. If the high court declines that would leave gay marriage for another day, perhaps several years in the future, time aplenty for us to continue debating this issue – honestly, or not.

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