A very concise and cogent "Sidebar" article in the NYT today does an excellent job of explaining the arguments that many gay rights advocates have against taking the Prop 8 challenge as far as the Supreme Court, and how one of the 9th Circuit judges managed to word the recent decision in the case in such a way that the court may be less likely to take it.

As we've discussed previously, a lot of smart people and gay rights attorneys have been more than a little freaked out about letting this particular case make it to SCOTUS. They argue that a state-by-state approach is far saner, that this is a states' rights case pertaining to one state's constitution, and it is an overly emotional reaction by the LGBT community to want to "bet the farm" and believe that their right to marry will get imposed federally in any case like this, just because it should. The decision in ideologically divided cases like this would rest solely in the hands of Justice Anthony Kennedy, who has been the swing vote in other such cases and who has taken a particular interest in gay rights. However, his vote to impose gay marriage on 50 states, when 40 of them currently have laws explicitly banning it, is far from guaranteed.

Enter Judge Stephen Reinhardt, thought to be one of the most liberal federal judges in the country's most liberal federal appeals court, who took a very cautious and narrow approach with the recent 9th Circuit decision. His tactic is two-fold: 1) it tries to keep SCOTUS from taking it at all, because it only applies to California, and 2) if SCOTUS does take it, he appeals directly to Kennedy's sensibilities. As NYT writer Adam Liptak explains:

California’s voters, he said, had no legitimate reason to use “their initiative power to target a minority group and withdraw a right that it possessed.” Doing that, he said, violated the federal Constitution’s equal protection clause. The broader question [of whether the federal Constitution guarantees gays and lesbians the right to marry] could wait.

Many gay rights advocates breathed a sigh of relief....

There was a second notable aspect to Judge Reinhardt’s approach. He adopted the analysis of a 1996 decision written by Justice Anthony M. Kennedy... that decision, Romer v. Evans, struck down a Colorado constitutional amendment that banned the passage of laws protecting gay men and lesbians. Judge Reinhardt stressed the similarities between Proposition 8 and the Colorado amendment, which was also the product of a popular referendum.

Additionally, it would probably be better if a different federal case, one that deals strictly with federal and state taxation of gay-married couples and the Defense of Marriage Act, makes it to the Supreme Court first.

We know there are still plenty out there who are impatient for the Supreme Court to issue a positive ruling, legalizing gay marriage everywhere and making this whole problem go away. For those, this is a valuable, quick read. They should also understand that if the Court did rule negatively on a case like Prop 8, the whole notion of federal gay marriage rights could be set back a decade a more.

[NYT]

PREVIOUSLY: Ninth Circuit Court Rules Prop. 8 Unconstitutional