A Judicial Victory That Could Send Gay Marriage to the Supreme Court

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They don't get as much attention as Obama's "evolution" on the issue, but the biggest substantive wins for equality advocates continue to come through the courts.

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Reuters

On Tuesday, the 9th Circuit decided not to reconsider the decision that found California's Proposition 8 gay-marriage ban unconstitutional -- a victory for gay-marriage supporters that makes it likely the U.S. Supreme Court will consider the issue. And while the California decision was but one step in a long process for marriage-equality advocates, it was an important reminder: For all the attention given to the "evolution" of politicians and the public, same-sex marriage continues to make some of its most consequential gains through the judiciary.

Prop 8 proponents have 90 days to file for Supreme Court review and are expected to do so. The high court will likely decide in October whether to take the case; if it does, arguments would likely be held in the spring of 2013 and a decision issued that June, a year from now, according to Theodore Olson, the former George W. Bush administration solicitor general who helped argue the case against Prop 8.

"We expect that decision to vindicate the rights of gays and lesbians to marriage equality," Olson said during a conference call with reporters convened by the American Foundation for Equal Rights. But even if the Supreme Court agrees with the 9th Circuit, a key question will be how broadly it formulates its decision. In the February decision upheld Tuesday, the 9th Circuit found that Prop 8 violated the 14th Amendment's guarantee of equal protection, but it did not decree that the Constitution guarantees marriage equality. The Supreme Court could similarly issue a narrow ruling striking down Prop 8 but leaving intact other states' gay-marriage bans -- or it could decide to go big and make gay marriage the law of the land.

David Boies, the Democratic lawyer who opposed Olson in Bush v. Gore but teamed up with him on the Prop 8 case, said marriage-equality advocates would happily take either result.

"We would prefer the broadest possible determination -- that marriage inequality violates the federal Constitution regardless of the particular circumstances of a particular state," Boies said during the call. "On the other hand, it would be a complete victory for our clients" -- the plaintiffs are two California same-sex couples -- "and a tremendous step forward for gays and lesbians across the country if it is affirmed on any grounds."

The court's step Tuesday comes at a time of immense optimism for gay-marriage advocates. Not only has Obama publicly taken their side, becoming the first sitting president to support gay marriage, but another landmark case is also moving toward the Supreme Court. Just last week, a federal court in Boston affirmed a lower court's ruling finding the Defense of Marriage Act unconstitutional.

Meanwhile, public opinion continues to move, seemingly inexorably, toward ever-greater approval of gay marriage. And while one state, North Carolina, just enacted a new constitutional ban on gay unions, others are moving in the opposite direction: Six states plus D.C. have made gay marriage legal, and gay-marriage advocates see reason for optimism in the four states -- Washington, Maryland, Minnesota, and Maine -- where the issue will be on the ballot in November. A poll released Tuesday found opposition to Minnesota's proposed gay-marriage ban now outweighs support for the initiative.

But with prohibitions still on the books in more than half of the states, it's through the courts, not state by state or even at the national policymaking level, where advocates of gay marriage still see the most potential for large-scale progress. And the progress made in the courts, in turn, may be helping to push public opinion in a direction that favors same-sex marriage as well.

"The more the American people understand and think about and appreciate the issue of how much it matters to individuals to be allowed to live with dignity," Olson said Tuesday, "the more the public accepts [marriage] as the right of those individuals and as the right place for America to be."

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Molly Ball is a staff writer covering national politics at The Atlantic.

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