As Peter Suderman
noted below, a 3-judge panel of the 9th Circuit Court of
Appeals voted today to strike down California’s Proposition 8,
which had amended the state constitution in order to forbid gay
marriage. While this is a big win for the cause of gay rights, it
is not a definitive judicial ruling in favor of gay marriage. As
Judge Stephen R. Reinhardt states in his majority opinion, the
court refused to touch the big question of whether the Constitution
protects a right to gay marriage:

Whether under the Constitution same-sex couples may
ever be denied the right to marry, a right that has long
been enjoyed by opposite-sex couples, is an important and highly
controversial question. It is currently a matter of great debate in
our nation, and an issue over which people of good will may
disagree, sometimes strongly. Of course, when questions of
constitutional law are necessary to the resolution of a case,
courts may not and should not abstain from deciding them simply
because they are controversial. We need not and do not answer the
broader question in this case, however, because California had
already committed to same-sex couples both the incidents of
marriage and the official designation of ‘marriage,’ and
Proposition 8’s only effect was to take away that important and
legally significant designation, while leaving in place all of its
incidents. This unique and strictly limited effect of Proposition 8
allows us to address the amendment’s constitutionality on narrow
grounds.

In other words, Reinhardt attempted to craft a relatively narrow
decision both to minimize the likelihood of the Supreme Court
hearing an appeal in the case (if one is filed), and to postpone
the ultimate battle over the constitutionality of gay marriage
until some later date. Had he issued a sweeping opinion that found
gay marriage to be a protected right, the Supreme Court would
almost certainly have agreed to hear the appeal. So why not force
the vote? Perhaps Reinhardt doesn’t think there are five current
Supreme Court justices in favor of gay marriage and he doesn’t want
to give the Court a chance to rule on the issue just yet.