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Court inaction could return gay marriage to Calif.

Thursday - 3/28/2013, 11:10pm  ET

Associated Press

SAN FRANCISCO (AP) -- 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."

--Prop. 8 backers lacked standing to defend

Many experts assume gay marriage would be re-established in California if the court finds the coalition of religious conservative groups that got Prop 8 on the 2008 ballot lacked the right to defend the measure in court, since then-Gov. Arnold Schwarzenegger and Jerry Brown, in his previous role as attorney general, refused to do so.

Such a ruling would vacate the 9th Circuit's decision, but leave in place the order former U.S. District Chief Judge Vaughn Walker issued after he overturned the ban as a violation of the civil rights of gay Californians, said Theodore Boutrous Jr., an attorney for the two couples who sued in Walker's court for the right to marry.

The order prohibited the governor, attorney general, everyone under their control or supervision, and clerks for two counties where the plaintiffs live from enforcing the ban.

"The way I look at it is, we have multiple paths to victory," he said. "There are many, many things that could happen, and for almost every single one, the answer is Prop 8 is gone."

--Only two couples affected

The justices could just as easily issue a ruling that invalidates both lower courts or at least limits the scope of Walker's decision, since Prop 8's backers were the only ones who actively defended the ban in either venue, said Vikram Amar, a professor at the University of California, Davis.

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