David Boies Says The Supremes Might Not Take Appeal to Gay Marriage

Supporters of the marriage ban -- passed by voters as Proposition 8 in 2008 -- will almost certainly appeal the ruling, which was made by a three-judge panel of the 9th Circuit Court of Appeals. That means Prop. 8's fate -- and perhaps the fate of other efforts to ban gay marriage -- could ultimately be decided by the U.S. Supreme Court. But first, the nation's top court would have to decide to take the case, known as Perry v. Brown. How likely is it that it'll do so?

Several legal experts say they'd be surprised if the Supreme Court chose to intervene. Here's why: Though it struck down Prop. 8, the 9th Circuit panel stopped short of addressing the larger question of whether gay marriage bans could ever be constitutional. Instead, it ruled more narrowly that because California had earlier allowed gays to marry, Prop. 8 violated the constitution's Equal Protection clause, by removing rights that had previously existed. As precedent, Judge Stephen Reinhardt pointed to a 1996 decision, Romer v. Evans, striking down an effort by Colorado to prevent the government from passing anti-discrimination laws to protect gays.

That specific set of facts -- the removal of previously existing rights -- doesn't apply to most states. As a result, some experts say, the narrowness of the panel's ruling may dissuade the Supreme Court from taking the case, since the justices usually prefer to get involved in cases where their rulings will have broader applications for the country as a whole.

That's the view of David Boies, the high-profile lawyer who represented the two same-sex couples challenging the case. "The grounds for the opinion, I think, do make it somewhat less likely that the Supreme Court will take it," Boies told reporters on a conference call, since it "just applies to California."

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