After last week's Supreme Court arguments on California's Proposition 8, most of the smart money seems to be on a ruling you can't really call it a decision ducking the big issue: Does the equal protection clause of the constitution allow a state to prohibit gay marriage?
Instead, the bet is that the court would either hold that it "improvidently granted" review, as it occasionally does, or, more likely, rule that the proponents of the initiative lacked standing to defend it in the federal courts.
Either decision would allow the court to avoid the divisive question that the case raises. And last week it seemed that some justices, maybe a majority, would dearly love to do that. What it wouldn't do is end the litigation.
The proponents loom large in this case only because Gov. Jerry Brown, who was attorney general when it was brought, and Arnold Schwarzenegger, who was then governor, refused to defend the initiative. Vaughn Walker, the San Francisco district court judge who heard it (and later ruled the gay marriage ban unconstitutional), allowed the proponents to step into the vacuum.
But if the Supreme Court holds they have no legal standing are not the injured parties and not responsible state officials, as some of the justices' questions last week suggested it would not only invalidate the decision in the 9th U.S. Circuit Court of Appeals striking down the initiative but raise questions about Walker's decision as well.
That wouldn't necessarily make the gay marriage ban in California constitutional, but it could mean that only the two couples who brought the suit could legally marry.
It's here that the situation gets really murky. If the Proposition 8 proponents lack standing in the U.S. Supreme Court, they would certainly lack standing in the 9th Circuit to appeal Walker's decision and, very possibly, in Walker's court as well. That could lead to a decision in some court that the two couples challenging the initiative win by default but that Walker's broad injunction barring state officials from enforcing the gay marriage ban is void.
But as Vikram Amar, a constitutional law professor at UC Davis, points out, a lot in this complex picture depends on exactly what the Supreme Court says.
Its ruling might undercut the whole injunction; or the injunction might survive in what, in effect, would be a gray area without the high court's blessing. An individual county marriage clerk might then sue for the right to refuse marriage licenses to gay couples. Or the governor might order all marriage clerks to issue licenses to gay couples, which might then prompt another suit.
As the extensive proceedings in Walker's court showed, and as Walker so elegantly outlined in his opinion, there is no defensible reason to deny same-sex couples the right to marry.
The arguments in defense of the gay marriage bans have been consistently demolished, as they appeared to be again in the Supreme Court last month. Justice Antonin Scalia's revealing question "When did it become unconstitutional to exclude homosexual couples from marriage?" could as easily apply to a range of other issues, most obviously to bans on inter-racial marriages, outlawed by a unanimous U.S. Supreme Court in 1967. When an injustice becomes obvious, shouldn't the courts provide relief?
But it's hard to be unsympathetic to the justices' discomfort. In a nation that's as hotly divided on an issue, it may sometimes be wiser not to get too far ahead of the public mood, especially when opinion is changing as rapidly as it seems to be on gay marriage.
Even some liberal defenders of choice on abortion have since conceded that the backlash against Roe v. Wade, handed down in 1973, energized right-wing politics as little else has.
That leaves the unlikely choice of a decision that review was "improvidently granted," a fancy phrase for "oops." It's unlikely because it would leave the 9th Circuit decision intact, making gay marriage a constitutional right in California, though in California only.
The 9th Circuit decision rested on a narrower basis than Walker's. It rested on a theory Judge Stephen Reinhardt contrived for this case: That where a state already granted certain rights to gay couples, as California did in recognizing domestic partnerships, there was no reasonable basis for denying them the right to marry. Thus, Reinhardt said, "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California."
As even some of the liberals on the Supreme Court pointed out, Reinhardt's logic involved an awkward stretch: it seemed to mean that when a state made great efforts to provide equal rights to gays, it could be forced to grant more, while a state that recognized no gay rights had to do nothing. But it also illustrated the tortured road that hot social issues sometimes travel in the courts and, in a case like this, may still lie ahead.
Peter Schrag is a former editorial page editor of The Bee.