Voters in three states last November approved same-sex marriage, marking the first time the ballot was used to approve such unions. California is the only state to allow and then revoke same-sex marriage.
"This is a conservative court -- conservative ideologically and conservative in the sense that they like to take baby steps, and it seems very unlikely that they would make some big radical move requiring all states to recognize same-sex marriages," Goldstein said. "They are much more likely to do something a little more modest. The other thing about them is that they don't want to be on the wrong side of history. It seems pretty clear where this is going, with a much broader recognition of same-sex marriage, and so the justices don't want to call that into question when the country is headed in that direction."
In fact, the court has set itself up to "punt" on both Proposition 8 and DOMA, avoiding for now consideration of the constitutional questions.
Such a "legal letdown" could turn on "standing," or the legal authority or eligibility of those involved in the lawsuit to argue the case. California's governor has refused to defend Proposition 8 in court, leaving a coalition of private groups to step in. Can they satisfy court scrutiny by establishing they would suffer tangible harm if the lower court ruling stands?
The justices could also "DIG" it, that is, have the case "dismissed as improvidently granted." Basically, the justices would be saying they should not have taken the Proposition 8 appeal in the first place.
Justice Sonia Sotomayor at the March oral argument suggested as much: "If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?" Some of her conservative colleagues seemed to agree as well.
The difference between rejecting the case on standing or DIG grounds would be important. A DIG would be likely to mean lower court rulings striking down Proposition 8 would hold, allowing California gay and lesbian couples to marry if they chose. How quickly that would happen is unclear because further legal challenges could be filed.
But a "standing" ruling would likely nullify everything, perhaps forcing both sides to start all over again in the lower courts, and limiting the reach of gay marriage to perhaps only a few California counties. Another statewide referendum, likely to be held next year, could finally settle the matter. Recent polls show growing support for same-sex marriage in California, reflecting a trend nationwide.
DOMA has its own sticky procedural questions. Obama now supports gay marriage, and has refused to defend the 1996 federal law. That has left House Republicans as the official parties in support of DOMA.
So the court could also dismiss that case on standing grounds. Most legal analysts, however, expect a more substantive ruling, one based on DOMA's merits.
Picking winners and losers at this stage is a subjective, even partisan, exercise. The court itself will be both cheered and vilified however it rules. But as an institution, it has survived similar crises of confidence over its discretionary authority in rulings involving slavery, racial integration, corporate power, abortion -- even Bush v. Gore.
Reaction to these big cases will be swift and furious from the professional punditry and halls of government. Some individual Americans stand to gain from the decisions, while others could be hurt financially and emotionally.
All of this is entrusted in the hands of nine judges. The Supreme Court usually gets the last word in these matters, regardless of who disagrees with the decisions.
Justice Robert Jackson, on the court from 1941 to 1954, put it this way: "We are not final because we are infallible, but we are infallible only because we are final."