So, if the Supreme Court decides, as we hope they will, that ruling on the California state-constitutionality of Prop 8 is not in their purview, then that would be that. The statewide ban on gay marriage could be lifted as early as December 1.
The Prop 8 case showed up on an agenda for the justices to review in a private conference on November 20, and they plan to issue a decision on whether to take the case on November 26. Same-sex marriage advocates are waiting with bated breath on this one because it would be, well, huge, even though it would stop short of giving hope for a near-term ruling on federal gay marriage rights. Previously, Prop 8 was discussed on a conference agenda by the Justices in September, but no public decision was announced. At least now the decision will come after the election.
Many longtime insiders in same-sex marriage legal circles have been skittish about letting this case get to the Supreme Court for two simple reasons: there's still a conservative majority on the court with Justice Kennedy in no way being a guaranteed supporter here; and there are better and more legally rigorous cases coming down the pike in SCOTUS's direction, like the challenges to the Defense of Marriage Act, which deal directly with federal taxation and such. The DOMA cases are on the November 20 agenda as well.
And while it seems likely that the Roberts Court is not going to want to use the Prop 8 case to rule on the issue, Roberts himself may just be tempted after getting his feet wet in big political issues with the Obamacare ruling.
Theodore Olson, one of the attorneys in the Prop 8 lawsuit, said recently that he thought the court would likely take up the case and group it with the DOMA cases in order to settle the issue once and for all and "get it done."