Quotes of the Day

The ruling Tuesday, Feb. 7, striking down California's ban on gay marriage marks the first time a federal appellate court has squarely rejected a state decision to limit marriage to straight couples. In so doing, it scored big for the two couples who brought the case and the thousands more who hope to marry in California.

However, the decision did less than many gay-rights advocates had hoped: it said nothing about whether the U.S. Constitution guarantees gays and lesbians the right to marry someone of their own sex. And the reinstitution of marriage for gay couples in California may well be put on hold while it is appealed to the Supreme Court, where its fate remains in the hands of Justice Anthony M. Kennedy's swing vote. That is, if the Supreme Court deigns to take it up.

But the explosion of joy via Twitter over the ruling — and the less raucous but just as earnest online hand-wringing by gay-marriage opponents — was not for nothing. By striking down California's Proposition 8, passed on Election Day 2008, the panel ruled 2-1 that California voters violated the U.S. Constitution by singling out gays and lesbians when they wrote a ban on same-sex marriage into the constitution. It mattered not one bit, the two-judge majority wrote, that gays had been given the right to marry mere months before, in a landmark decision by the California Supreme Court.

In his majority opinion, Justice Stephen Reinhardt said it was the fact that Prop 8 took away rights that violated the U.S. Constitution. He channeled the Supreme Court's first decision broadly favoring gay rights: the 1996 opinion Romer v. Evans, which struck down a statewide referendum in Colorado that had barred cities from passing local ordinances aimed at protecting gays from workplace and housing discrimination. He wrote, "Romer ... controls where a privilege or protection is withdrawn without a legitimate reason from a class of disfavored individuals, even if that right may not have been required by the Constitution in the first place."

In doing so, Reinhardt sent a not very subtle message to Justice Kennedy, who is likely to be the decisive Supreme Court vote and who also wrote the Romer opinion. Professor Erwin Chemerinsky, law dean at the University of California at Irvine, says, "I think it's clear that everyone knows that Justice Kennedy is who matters most on the Supreme Court. The panel was trying to rule narrowly and rely on Kennedy opinions. That makes sense — his opinions are the key opinions. I think the court was also being very careful."

The proponents of Prop 8 have 14 days to ask for a rehearing before the full court. If they do, or if they file a notice of appeal, Prop 8 could remain intact in California for months or longer. The opposing legal team would ask that the stay that has been in place since Judge Vaughn Walker issued his California Supreme Court decision in 2010 be lifted. That could be a long shot, given the caution with which courts have always dealt with such requests. If it is granted, however, the soonest Prop 8 could be lifted would be Feb. 28, seven days after the 14-day deadline.

Andy Pugno, general counsel for the ProtectMarriage.com coalition, the official proponents of Proposition 8, says he expected all along to lose at the Ninth Circuit. "Ever since the beginning of this case, we've known that the battle to preserve traditional marriage will ultimately be won or lost not here but rather in the U.S. Supreme Court. We will immediately appeal this misguided decision that disregards the will of more than 7 million Californians who voted to restore marriage as the unique union of only a man and woman. We are confident that the rights of California voters will finally win out."

Nearly everyone believes the issue of gay marriage will eventually be put before the Supreme Court. Nevertheless, Tuesday's decision may make it less likely that the Prop 8 case is the means by which it will arrive. David Boies, who with former U.S. Solicitor General Theodore Olson has led the legal charge in the case, said he had his doubts. "The grounds for the opinion, in my view, do make it somewhat less likely that the Supreme Court will take it," he said in a presser called after the decision was released.

That's because the case is narrowly tailored to the situation in California, where gays were given the right to marry and then only months later had that right taken away. The dissent argued that California had sufficient grounds to restrict marriage, noting that unlike the California high court, the U.S. Supreme Court has never declared that laws discriminating on the basis of sexual orientation are subject to additional legal scrutiny.

The majority decision nevertheless represents a "monumental loss" for opponents of gay marriage, says Chad Griffin, the board president of the California-based American Foundation for Equal Rights, which has raised the money to finance the case. The decision means that in states across the country, it will be more difficult for opponents of gay marriage to roll back what progress has been made in places like Iowa, Massachusetts and — perhaps as soon as this week — Washington State.

If Tuesday's opinion is not appealed, or if it is left standing after those appeals, it would change the law only in the jurisdiction of the Ninth Circuit. But supporters and opponents alike say that given that the circuit's decisions are binding on all of the West Coast, it will have a huge impact on decisions — and public opinion — elsewhere too.

The Rev. Al Mohler tells TIME this is worrying. "On its face, this puts things back to status quo ante before Prop 8, with California back on the map legalizing same-sex marriage," says Mohler, president the Southern Baptist Theological Seminary in Louisville, Ky. "You are looking at a very significant portion of the American people who are living under the status quo where gay marriage is legal, especially with Washington State also perhaps coming on in a matter of days."

If that happens, he says, "Out of intellectual honesty, I have to say, that brings an enormous amount of momentum [to gay marriage] nationally. My concern is that would be something that is harmful to human beings and the nation and those who enter into those unions."

But for many, including Mohler, the worst aspect of the case was the sweeping language with which Reinhardt dismissed the gay-marriage opponents' reasons for passing Prop 8. The judge called it little more than bigotry. "The most important issue for me, the most troubling," Mohler says, "is the conclusion that anyone who wants to defend traditional marriage does so out of animus against others. That is neither true nor fair. And it's the kind of judicial reading of motivations that leads to courts ruling on areas outside their area of knowledge or expertise."

Indeed, Reinhardt stated throughout the ruling that California voters are in most cases free to amend their constitution as they see fit, provided that they do not single out a group for no "legitimate reason": "Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of the law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted." And later in the opinion, Reinhardt wrote, "By withdrawing the availability of the recognized designation of 'marriage,' Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class."

Olson seized on that language too, but in order to hail its power. "This case was about marriage and equality and about the right of gays and lesbians to marry," he said just after the decision. "This decision today affirms importance of right to marriage, the same importance that our opponents have attached to it. The difference is," he said, "they wanted to keep it to themselves."

• Michael A. Lindenberger