PROP8LESBIANJustinSullivan:Getty

Silver tries to weigh the intangibles:

I'm not qualified to analyze the merits of Perry v. Schwarzenneger point of view from a legal positivist point of view, I will deign to take a crack at it from a legal realist frame. It seems to me that most of the "intangibles" bear upon Justice Kennedy in ways that favor his finding Constitutional protection for same-sex marriage. For one thing, he'll be 75 or 76 by the time the SCOTUS hears this case, and will probably be thinking about his legacy. Given that, in 50 years' time, American society will almost certainly regard the plaintiff's position (the Constitution does not permit discrimination in marriage on the basis of sexual orientation) as the right one, that legacy would be better served by casting the decisive vote in favor of the plaintiffs.

(Photo: Same-sex couple Shelly Bailes (L) and Ellen Pontac celebrate the ruling to overturn the ban on gay marriage outside of the Philip Burton Federal building August 4, 2010 in San Francisco, California. By  Justin Sullivan/Getty Images)

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