SAN FRANCISCO — The U.S. Supreme Court seems reluctant to use the legal battle over California's same-sex marriage ban to rule that all gay Americans have a constitutional right to wed, but that doesn't mean gay marriage will not be returning to the state.
The high court's forthcoming ruling is likely to allow same-sex marriages to resume in California more than four years after gays and lesbians first won the right to wed in the state courts and lost it a few months later at the ballot box, legal experts and lawyers involved in the case said.
How that happens and how long it would take remain open to interpretation. There are a range of possibilities. Some experts say a court decision, expected in June, could mean that marriages resume statewide soon after, while others argue a ruling could be limited, and only affect the original two plaintiffs and residents of counties where they live.
"I don't think it's at all a foregone conclusion that everyone gets to benefit," said Tobias Wolff, a University of Pennsylvania law professor who has spent months puzzling over the various scenarios, adding that it's going to take a lot more work before there is a final answer.
Each scenario is likely to produce more legal and political wrangling while same-sex marriage backers organize to repeal the voter-enacted ban, known as Proposition 8, with the expectation that public opinion has shifted in their favor since it passed with 52 percent of the vote in November 2008.
Prop 8 amended the state constitution to limit marriage to a man and a woman. From justices' questions Tuesday during arguments over its constitutionality, legal experts assume a majority will not strike down that measure along with similar amendments adopted in 29 other states.
Such a broad ruling was what lawyers who sued to overturn Prop 8 want from the high court. Instead, the court appeared headed for resolutions that would bypass any discussion of civil rights and, by default, allow one or both of the lower court decisions that struck down the ban to take effect. Legal scholars and lawyers involved in the case disagree about what is likely to occur from there.
—Dismissing the case
Unless five justices conclude Prop 8 is unconstitutional, the surest route to restoring gay marriage in California lies in an option raised by Justice Anthony Kennedy. Kennedy suggested that if there was not a majority willing to preserve or overturn the ban, the court could belatedly dismiss the case "as improvidently granted," meaning it should not have taken up the appeal in the first place.
In that instance, a narrow 9th U.S. Circuit Court of Appeals ruling that struck down Prop 8 without affecting gay marriage bans in other western states would stand, putting California back among states where gays and lesbians can get married, said John Culhane, a professor at Widener University School of Law in Delaware.
"Talk about deflating a balloon," he said. "Hundreds of briefs, the countless thousands of dollars spent on the case ... But practically, the effect would be the same as a win on the merits."