Justices Hint At Partial Supreme Court Victory For The Gay Marriage Movement

The first of two huge Supreme Court cases on gay marriage may be heading for a partial victory for supporters of the movement.

"SCOTUS won't uphold or strike down Prop 8," SCOTUSblog's Tom Goldstein predicted over twitter after the Tuesday hearing was over.

So what does that mean, and why would that be a partial victory for gay marriage advocates?

The hearing involved California's voter-approved ban on gay marriage, known as Proposition 8, which was struck down by a federal judge and an appeals court. When California declined to defend the law, it was backed by a coalition of anti-gay marriage advocates and elevated to the Supreme Court.

The Supreme Court could decline to issue a ruling at all, however, by finding the anti-gay marriage advocates don't have legal "standing" to defend the law.

If that happens, then the appeals court ruling would stand and gays could continue to get married in California.

During arguments on Tuesday, two of the Supreme Court's possible swing voters made statements indicating that they may decline to rule on the case.

“I wonder if the case was properly granted,” said Justice Anthony Kennedy, according to the transcript of the argument.

Meanwhile, Justice John Roberts pointed out that citizens like the Prop 8 backers don't usually have the right to sue over laws they support.

Roberts pressed the lawyer for the Prop 8 supporters on why they should be able to step into the state of California's shoes and defend the law, according to the transcript.

"I don't think we've ever allowed anything like that," Roberts reportedly said.

If the court does in fact rule the Prop 8 backers don't have standing, it would be a partial victory for the gay marriage movement.

A broad ruling finding a Constitutional right to gay marriage would have been the most clear-cut victory for gay-rights supporters. By refusing to weigh in on the case, however, the high court will preserve a smaller legal victory gays already won and give the other states some time to come around gay marriage on their own. This route could also avoid a potential backlash against the gay rights movement.

Liberal legal expert David Cole wrote in today's New York Times: "I fully support marriage equality. But, strange as it may sound, I believe that in the Prop 8 case, the court should decide not to decide the gay marriage issue at all."

Slate's Emily Bazelon, another person who favors gay marriage, also argued against a broad ruling that there's a Constitutional right to gay marriage.

"This one is a winner in the polls: Let’s let it move through the country gradually, because that’s the most enduring, least divisive way to make change," she wrote.