Maybe the California case will be the gay Brown. Certainly, the momentum of social change has shifted since the controversial filing in 2009 and the establishment critics have greatly softened their stand. For the first time in American history in November, not one, but all the states to consider gay nuptial issues at the ballot box broke in favor of gay rights. One could argue that the gay run-up cases have already been won. In 1996 Justice Anthony Kennedy, still rumored to be the swing vote this time, wrote a groundbreaking opinion in favor of the political rights of gays. In 2003, the Supreme Court threw out the remaining state laws making sodomy criminal.
But the Court is so conservative and so evenly divided. Justice Kennedy has delivered an almost unbroken series of conservative votes in the last several years, swinging almost not at all between the factions. It pays to remember that even after a series of cautious moves led to victory, when the women’s movement asked for inclusion of pregnancy in disability benefits – they lost decisively. The closest case to the Boies-Olson litigation in the women’s movement – Roe v. Wade — triggered a four decade backlash. Once before the gay movement overplayed its hand ever so slightly with the Court and got a terrible decision upholding the criminal sodomy laws. Gays almost won the first sodomy case; the decision in Bowers v. Hardwick was only 5-4, so it was hardly a foolhardy risk. And yet, it does make you shiver.
Of course, certiorari is not destiny. The Court could still weasel out of the Prop 8 decision by ruling that the case had technical problems with who can defend a law when the govern and attorney general have bailed. And then it could affirm the conservative premise of the DOMA case that Congress can’t withhold federal benefits from marriages some states have blessed. A direct constitutional challenge is coming anyway, But in constitutional litigation, as in marriage proposals, sometimes timing is everything.