by Patrick Appel 
 
 The court has a useful summary of the ruling here (pdf). Orin Kerr helps decode the legal argument: 
 
 Reinhardt decided that the Supreme Court wasn’t ready yet to embrace a full right to same-sex marriage, and that it was wiser to offer [Justice Anthony Kennedy] a narrow rationale based on Romer rather than a broad rationale based on Lawrence or Loving. So Reinhardt’s reasoning seems to be California-specific: He argues that Prop 8 took away rights provided by the California Supreme Court’s Marriage Cases, and that those who voted for Prop 8 acted out of animus towards or disapproval of gays, making Prop 8 unconstitutional under a Romer rationale regardless of whether same-sex marriage is constitutional in the general case. 
 
 Rick Hasen concurs: 
 
 Judge Reinhardt wrote his opinion for an audience of one: Justice Kennedy. This opinion is considerably narrower than Judge Walker’s opinion in the district court, and it relies very heavily on Romer v. Evans, an earlier gay rights case in which Justice Kennedy wrote the majority opinion. 
 
 Lyle Denniston provides further analysis: 
 
 By fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court. However, because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life. 
 
 Rob Tisinai is disappointed that the ruling only applies to California: 
 
 An existing comprehensive domestic partnership law, and the removal of an existing right: These two key factors don’t apply to most states, and thus the reasoning behind the Court’s decision (and, by extension, the decision itself) doesn’t either. 
 
 Kevin Drum is echos: 
 
 [T]his ruling has no impact at all in states where same-sex couples don't already have all the rights of opposite-sex couples, and the court declined to make a broader ruling that might have addressed that. 
 
 Full ruling here. 
 
 (Photo: Same-sex couple Breana Hansen (L) and Monica Chacon kiss as they celebrate outside of San Francisco City Hall on February 7, 2012 in San Francisco, California. By Justin Sullivan/Getty Images) ||||| 645X363 - No Companion - Full Sharing - Additional videos are suggested - Policy/Regulation/Blogs 
 
 Religious leaders are calling on members of the Supreme Court’s liberal wing to recuse themselves from the blockbuster gay marriage case that the court will begin considering on Tuesday. 
 
 Standing on the steps of the Supreme Court, Scott Lively, president of Abiding Truth Ministries, told reporters he’s filing a motion with the Supreme Court calling for the recusal of Justices Ruth Bader Ginsburg and Elena Kagan. 
 
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 “Justices Ginsburg and Kagan, knowing full well that unique legal issues regarding the definition of marriage would soon come before them, deliberately officiated at so-called homosexual wedding ceremonies creating not merely the appearance of bias, but an actual and blatant conflict of interest,” he said. 
 
 “In my personal view they have committed an unparalleled breach of judicial ethics by elevating the importance of their own favored political cause of gay rights above the integrity of the court and of our nation.” 
 
 The case before the court, known as Obergefell v. Hodges, stems from a 6th Circuit Court of Appeals decision to uphold same-sex marriage bans in Ohio, Tennessee, Michigan and Kentucky. The court has grouped the appeals from the couples in the four states together and will hear two and a half hours of arguments Tuesday morning, 90 minutes more than the court typically allows. 
 
 In their rulings, the justices will seek to answer whether states are required to license a marriage between two people of the same sex and whether states have to recognize same-sex marriage licenses from other states under the 14th Amendment. 
 
 Lively said Kagan and Ginsburg's “vividly demonstrated disposition” in favor of the same-sex couples shows they are unable to render a fair judgment. 
 
 He and more than a dozen leaders of anti-gay-marriage groups stood behind a wall of empty cardboard filing boxes stacked on the steps of the court on Monday morning. 
 
 The boxes — 60 in all — were there to "symbolically" represent 300,000 restraining orders that Faith2Action President Janet Porter said will be delivered to the Supreme Court and to Congress to keep the justices from ruling on gay marriage. 
 
 “We have appealed to Congress to restrain the judges, and the good news is Congress has heard our cry,” Porter said. 
 
 Last week, Rep. Steve King (R-Iowa) introduced the Restrain the Judges on Marriage Act of 2015, which would remove jurisdiction to rule on gay marriage from federal courts. In the Senate, Sen. Ted Cruz Rafael (Ted) Edward CruzGroup aiming to draft Beto O’Rourke unveils first 2020 video Howard Dean looking for a 'younger, newer' Democratic nominee in 2020 Congress can stop the war on science MORE (R-Texas) has introduced The Protect Marriage from the Courts Act, which would also limit the federal courts’ jurisdiction to consider same-sex marriage cases. 
 
 “Congress has the ability to remove appellate jurisdiction,” Porter said. “What that means is, we can actually take from them their right to rule on marriage before they even rule on marriage.” 
 
 During the press conference, Larry Sternbane, 51, stood quietly back behind the crowd holding a sign that read, “Don’t like gay marriage? Don’t get gay married.” 
 
 “This right here is the last gasp of a group that is losing this issue in the public square,” he said. “They are talking to themselves. There are a bunch of tourists listening, and the only ones clapping when somebody ends is them.” ||||| The Supreme Court on Monday ruled for a Colorado baker who refused to create a wedding cake for a same-sex couple, but it left undecided whether a business owner’s religious beliefs or free speech rights can justify refusing some services to gay people. 
 
 Instead, Justice Anthony M. Kennedy’s 7-to-2 decision focused on what he described as religious bias on the part of Colorado Civil Rights Commission members who ruled against baker Jack Phillips, who owns Masterpiece Cakeshop. 
 
 “The neutral and respectful consideration to which Phillips was entitled was compromised here,” Kennedy wrote, adding that the commission’s decision that the baker violated the state’s anti-discrimination law must be set aside. 
 
 But Kennedy acknowledged that the decision was more of a start than a conclusion to the court’s consideration of the rights of those with religious objections to same-sex marriage and the rights of gay people, who “cannot be treated as social outcasts or as inferior in dignity and worth.” 
 
 Future cases that raise those issues “must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” he wrote. 
 
 [The spurned couple, the baker and the long wait for the Supreme Court] 
 
 Such a case could come quickly: The court is set to consider this week whether to review a Washington state Supreme Court decision that a florist could not legally decline to provide flowers to a same-sex wedding there. 
 
 The bakery case was one of two decisions Monday — a ruling on an immigrant teenager’s abortion was the other — in which the court opted for compromise rather than division. The justices are in the final month of a term that has included contentious fights over President Trump’s power in the travel ban case and what could be a landmark decision on partisan gerrymandering, among other issues. 
 
 Kennedy’s narrow ruling drew the support of three of the court’s consistent conservatives — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Neil M. Gorsuch — and two of its consistent liberals, Stephen G. Breyer and Elena Kagan. 
 
 Justice Clarence Thomas agreed with the outcome but said he would have ruled for Phillips on free-speech grounds. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, saying comments from the commissioners did not change the outcome of the case. 
 
 “What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say,” Ginsburg wrote. 
 
 In a conference call with reporters, Phillips thanked the court for recognizing “the injustice that the government inflicted on me.” He said that “tolerance is a two-way street” and added, “If we want to have freedom for ourselves, we have to extend it to others with whom we disagree about important issues like the meaning of marriage.” 
 
 But James Esseks of the American Civil Liberties Union, which represented the couple at the center of the fight, Charlie Craig and David Mullins, pointed to Kennedy’s protective language about gay citizens and the “general rule” that religious and other objections “do not allow business owners and other actors in the economy and in society to deny . . . equal access to goods and services.” 
 
 “The bakery may have won the battle, but it has lost the war,” Esseks said in a conference call with reporters. 
 
 Even the dissenting Ginsburg began her opinion: “There is much in the Court’s opinion with which I agree.” 
 
 The case presented Kennedy with a dilemma. On the one hand, he is one of the court’s staunchest defenders of free speech and religious freedom. On the other, he has written all of the court’s groundbreaking opinions on gay rights, including that there is a constitutional right for same-sex couples to marry. 
 
 He had signaled in oral arguments that comments from members of the commission displaying “religious hostility” might be the narrow way out. 
 
 “At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community,” Kennedy wrote. 
 
 He noted that one commissioner later said that religious beliefs had been “used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust.” 
 
 Such statements, Kennedy wrote, “cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.” 
 
 Phillips contended that dual guarantees in the First Amendment — free speech and the free exercise of religion — protect him against Colorado’s public accommodations law, which requires businesses to serve customers equally regardless of “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” 
 
 Alliance Defending Freedom Senior Counsel Kristen Waggoner, who represented Phillips, praised the ruling. “Government hostility toward people of faith has no place in our society, yet the state of Colorado was openly antagonistic toward Jack’s religious beliefs about marriage,” she said. 
 
 She and Esseks agreed that the court’s decision resolves this particular case against Phillips. But she was reluctant to opine on what might happen if Phillips again declined to create a wedding cake for a same-sex couple, saying she needed more time to study the ruling. 
 
 Across the country, florists, bakers, photographers and others have claimed that being forced to offer their wedding services to same-sex couples violates their rights. Courts have routinely turned down the business owners, as the Colorado Court of Appeals did in the Phillips case, saying state anti-discrimination laws require businesses that are open to the public to treat all potential customers equally. 
 
 There’s no dispute about what triggered the court case in 2012, when same-sex marriage was prohibited in Colorado. Craig and Mullins decided to get married in Massachusetts, where it was legal. They would return to Denver for a reception, and those helping with the plans suggested they get a cake from Masterpiece Cakeshop. 
 
 The couple arrived with Craig’s mother and a book of ideas, but Phillips cut short the meeting as soon as he learned that the cake was to celebrate the couple’s marriage. 
 
 Phillips recalled: “Our conversation was just about 20 seconds long. ‘Sorry guys, I don’t make cakes for same-sex weddings.’ ” 
 
 The couple then learned that Colorado’s public accommodations law specifically prohibits discrimination based on sexual orientation, and they filed a complaint with the Colorado Civil Rights Commission. The commission ruled against Phillips, and the appeals court upheld the decision. 
 
 On Monday, Craig and Mullins issued a statement on the ruling: “Today’s decision means our fight against discrimination and unfair treatment will continue,” the couple said. “We have always believed that in America, you should not be turned away from a business open to the public because of who you are. We brought this case because no one should have to face the shame, embarrassment, and humiliation of being told ‘we don’t serve your kind here’ that we faced, and we will continue fighting until no one does.” 
 
 Within the court’s seven-member majority, there were differences that are likely to animate future cases. 
 
 Gorsuch, along with Alito, indicated they would have been willing to go further. Some may find Phillips’s religious beliefs irrational or even offensive, Gorsuch wrote, but that is of no consequence. “In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise,” he wrote. 
 
 He added: “It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other — without regard to the religious significance his faith may attach to it — than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.” 
 
 Kagan, joined by Breyer, said Gorsuch was wrong. 
 
 “A wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with ‘religious significance,’ ” Kagan wrote. “As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait.” 
 
 She referenced a 1968 decision that said a barbecue restaurant owner must serve black customers even though he claimed that his religion did not embrace racial equality. 
 
 Monday’s case is Masterpiece Cakeshop v. Colorado Civil Rights Commission. ||||| Correction: An earlier version of this story misattributed some comments made by Chief Justice John Roberts to Justice Antonin Scalia. The story has been corrected. 
 
 The Post’s Bob Barnes explains what went on inside the Supreme Court on Wednesday as the justices appeared skeptical during the oral arguments for the Defense of Marriage Act. (JulieAnn McKellogg and Jayne Orenstein/The Washington Post) 
 
 The Post’s Bob Barnes explains what went on inside the Supreme Court on Wednesday as the justices appeared skeptical during the oral arguments for the Defense of Marriage Act. (JulieAnn McKellogg and Jayne Orenstein/The Washington Post) 
 
 A majority of the Supreme Court on Wednesday appeared ready to strike down a key section of a law that withholds federal benefits from gay married couples, as the justices concluded two days of hearings that showed them to be as divided as the rest of the nation over same-sex marriage. 
 
 Justice Anthony M. Kennedy, the pivotal justice on the issue, said the federal Defense of Marriage Act (DOMA) may have intruded too deeply on the traditional role of state governments in defining marriage. The federal law recognizes marriages only between a man and a woman, and Kennedy said that ignores states “which have come to the conclusion that gay marriage is lawful.” 
 
 “Citizens’ day-to-day life” is affected by the more than 1,100 references to marriage contained in federal laws and regulations, Kennedy said, creating a “real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.” 
 
 It appeared Kennedy’s interest in states’ rights might align with the concerns of the court’s four liberals that the law impermissibly targeted gay couples. Justice Ruth Bader Ginsburg said that the law, by withholding things such as tax advantages, Social Security benefits and leave to care for a spouse, raises a question: “What kind of marriage is it?” 
 
 A decision on DOMA — passed in 1996 when same-sex marriages were only theoretical — might be the most tangible development to come from the court’s two days of hearings on same-sex marriage. 
 
 On Tuesday, when considering an appeals court’s decision that overturned California’s voter-approved ban on same-sex marriage, the justices seemed to be looking for the narrowest way possible to resolve the case. They seemed reluctant to find that gay people have a constitutional right to marry. 
 
 In Wednesday’s nearly two hours of argument, the court also spent little time on another important legal issue the cases raised: whether laws affecting homosexuals deserved the kind of heightened scrutiny that courts use when examining possible discrimination against racial minorities. 
 
 But the arguments did reveal an unsurprising divide on the court, with liberal justices more supportive of gay rights and same-sex marriage and conservatives more tolerant of government action to protect “traditional marriage.” 
 
 At Wednesday’s arguments, Chief Justice John G. Roberts Jr. was skeptical of the idea that gay people might lack political power when it comes to government actions. 
 
 “You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?” Roberts asked Roberta A. Kaplan, one of the lawyers bringing the challenge to DOMA. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.” 
 
 “The fact of the matter is, Mr. Chief Justice,” Kaplan responded, “that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights the way gay people have.” 
 
 Roberts was equally tough on the Obama administration. President Obama and Attorney General Eric H. Holder Jr. decided two years ago that DOMA was unconstitutional and have declined to defend the law in court. But the administration has continued to enforce it until the Supreme Court decides its fate. 
 
 If Obama has decided the law is unconstitutional, Roberts said, “I don’t see why he doesn’t have the courage of his convictions” to stop enforcing the law, “rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.’ ” 
 
 The liberal justices sharply questioned former George W. Bush administration solicitor general Paul D. Clement, who is representing House Republican leaders who are defending DOMA. 
 
 He said the law, passed by overwhelming majorities in each chamber of Congress and signed by President Bill Clinton, was a reaction to the prospect that Hawaiian courts were on the verge of approving same-sex marriage. 
 
 Congress feared that “by the operation of one state’s state judiciary, same-sex marriage is basically going to be recognized throughout the country,” Clement said. “And what Congress says is: ‘Wait a minute. Let’s take a timeout here. This is a redefinition of an age-old institution.’ ” 
 
 Clement said Congress was within its powers to define marriage for the benefits it bestows and to strive for “uniformity” across the country by limiting those benefits to heterosexual couples. 
 
 He was strongly challenged by Justice Elena Kagan. She said that when Congress “targets a group that is not everybody’s favorite group in the world,” the court has an obligation to examine, “with some rigor, to say, ‘Do we really think that Congress was doing this for uniformity reasons or do we think that Congress’s judgment was infected by dislike, by fear, by animus and so forth?’ ” 
 
 She caused a stir in the courtroom, which appeared to be mostly filled with supporters of same-sex marriage, when she quoted language from a House committee’s analysis of the law: “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” 
 
 Clement replied: “Does the House report say that? Of course, the House report says that.” But he added that the court has never struck a statute “just because a couple of legislators may have had an improper motive.” 
 
 Solicitor General Donald B. Verrilli Jr., representing the Obama administration, also sought to convince the court that the section of DOMA being challenged was motivated by prejudice. 
 
 When Roberts skeptically asked whether “the 84 senators who voted in favor of it and the president who signed it” were driven by animus, Verrilli said that was not the point. 
 
 The section, he said, “is discrimination.” 
 
 The case was brought by 83-year-old Edith Windsor, who watched from the second row. Windsor married Thea Spyer, her partner of more than 40 years, in Canada in 2007. Both were residents of New York. When Spyer died in 2009, she left her estate to Windsor. 
 
 At that time, the state of New York recognized the marriage. But because the marriage was not recognized by the U.S. government, Windsor paid a federal estate tax bill of more than $360,000 that would not have been assessed if she were married to a man. 
 
 The Obama administration agreed with the appeals court that ordered a refund but wanted the Supreme Court to render a definitive verdict on DOMA. 
 
 That led to the legal wrangling that dominated the first part of the argument and could lead to a decision that the case is not properly before the court. 
 
 A court-appointed lawyer, Harvard law professor Vicki C. Jackson, told the justices that Republican leaders in the House do not have proper standing to defend the law and that the Obama administration was not a viable party, because it agrees with the lower courts. 
 
 Roberts and Justice Antonin Scalia were the most critical of the approach the Obama administration has taken on the law. Roberts said the administration’s agreement with the lower court meant it was making an extraordinary request to have the Supreme Court consider it. 
 
 “You’re asking us to do something we’ve never done before,” Roberts said. 
 
 When Deputy Solicitor General Sri Srinivasan acknowledged that it was unusual, Roberts shot back: “No, not unusual — totally unprecedented.” 
 
 Discuss this topic and other political issues in the politics discussion forums. ||||| The tide might be turning in favor of gay marriage, but that doesn’t mean the Supreme Court will be swept up in it. 
 
 For all the toasting in Washington and excitement among gay rights groups about the historic oral arguments this week, there’s still a chance their set of cases could culminate in a loss. 
 
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 reset POLITICO Prop. 8 report Sights, sounds from day one 
 
 Under the worst-case scenario for gay rights groups, the court could uphold both California’s Proposition 8 and the federal law Defense of Marriage Act — extending no new rights to gay couples looking to marry or take advantage of federal benefits extended to opposite-sex couples. 
 
 But gay rights activists say this wouldn’t have the impact of Plessy v. Ferguson — the 1896 decision that left “separate but equal” the law of the land until Brown v. Board of Education six decades later. 
 
 (Also on POLITICO: Culture wars return — with a twist) 
 
 Instead, they say, they would still leave the court in a better position than when they started their legal trek because public opinion has swung in their favor, supporters have been galvanized and about 100 prominent Republicans signed a brief publicly endorsing gay marriage. 
 
 “Even if you lose the case, and I think that’s very unlikely, you would say that the case has been a success because it’s changed public opinion so dramatically,” said Richard Socarides, a former adviser to President Bill Clinton. “It’s really unbelievable what a successful communications and litigation strategy has combined to do in such a short time.” 
 
 Plus, they don’t think they’re going to lose big at all. 
 
 “There’s zero possibility,” said University of Chicago law professor Geoffrey Stone. 
 
 One key source of confidence is Justice Anthony Kennedy’s majority ruling 17 years ago in Romer v. Evans, a case throwing out a Colorado ballot measure that banned any special protections for gays and lesbians. Many analysts believe that decision and a 2003 ruling he wrote banning sodomy laws essentially guarantee Kennedy will vote to find the Defense of Marriage Act unconstitutional. With the four Democratic-appointed justices thought to favor at least that much of a win for gay rights, Kennedy would make a majority. 
 
 (Also on POLITICO: Poll: Court approval near record low) 
 
 Other potential GOP pickups for the pro-same sex marriage forces are Chief Justice John Roberts and Justice Samuel Alito. 
 
 For those reading tea leaves, there are signs Roberts could be in play. While in private practice in 1995, Roberts gave pro bono help to the legal team preparing briefs and oral arguments for the Colorado case. And Roberts is using some of his personal allotment of tickets to this week’s arguments to allow a lesbian cousin and her partner to attend oral arguments, the Los Angeles Times reported. 
 
 Justices Antonin Scalia and Clarence Thomas are considered pretty certain votes against same-sex marriage. Scalia defended the Colorado measure as “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” Thomas joined the opinion. 
 
 (PHOTOS: 21 landmark SCOTUS rulings) 
 
 There is one potential wild card on the left: Justice Ruth Bader Ginsburg. Though she was a pioneering litigator for the American Civil Liberties Union on gender issues, she has repeatedly said she thinks the Roe v. Wade decision went too far because it forced a consensus that many Americans had not arrived at and led to a backlash. 
 
 “It’s not that the judgment was wrong, but it moved too far too fast,” she said at Columbia Law School last year. “The court made a decision that made every abortion law in the country invalid, even the most liberal. … Things might have turned out differently if the court had been more restrained.” ||||| Good News, Bad News 
 
 The court’s promotion of gay marriage is like a shotgun wedding: done with reluctance and without the loving embrace of someone fully committed to the sacred union. 
 
 In 1964, when the Supreme Court held that the Civil Rights Act’s bar on racial discrimination applied even to a small, family-owned barbecue restaurant in Birmingham, Alabama, the court rested its ruling on Congress’s power to regulate interstate commerce, rather than on the Constitution’s guarantee of “equal protection.” As Justice Tom Clark announced the opinion from the bench, Justice Arthur Goldberg scribbled a note to Justice William O. Douglas criticizing the court’s reluctance to base its decision on equality: “It sounds like hamburgers are more important than human rights.” 
 
 Today’s two Supreme Court decisions on marriage equality might be similarly described. To hear the reasoning of the court, it sounds like procedure is more important than people. 
 
 Like the court’s decision in the Birmingham barbecue case, today’s decisions undoubtedly advance the cause of equality for LGBT individuals. Yet they do so not because the justices are fully committed to equal citizenship for all Americans regardless of sexual orientation. Instead the court’s rulings focused largely on process—either how the law was passed or how the law came up for review in the court. And by focusing on process and procedure, the court severely limits the scope and implications of its rulings. 
 
 The court’s emphasis on process and procedures is most glaring in Hollingsworth v. Perry, the case involving California’s ban on same-sex marriage. Über-lawyers Ted Olson and David Boies, who famously went head-to-head in Bush v. Gore, asked the justices to hold that LGBT couples had a constitutional right to marry. If the justices had agreed, bans on same-sex marriage in 38 states might have been overturned. Alternatively, the court could have limited its ruling to California, on the theory that states can’t grant marriage rights one day and take them away the next. The justices declined to endorse either approach. Rather, the court held that it didn’t have the authority to rule on the merits of Olson and Boies’s challenge to California’s ban because the initiative’s backers, who were defending the law on appeal when California’s lawmakers refused to do so, lacked authority to represent the state’s interests. Because of this procedural problem, all the appeals in the Proposition 8 challenge were nullified. 
 
 Make no mistake, Perry is a victory for marriage equality. The trial court ruling by Judge Vaughn Walker that Proposition 8 is unconstitutional still stands, as does the injunction he issued requiring state officials to issue marriage licenses to same-sex couples. By its terms, it prohibited state officials from “applying or enforcing” Proposition 8. That would seem to mean that state officials can’t refuse to issue marriage licenses on the basis of sexual orientation to any gay couple. In other words, same-sex marriage would be immediately lawful throughout California. Yet, consistent with existing law on injunctions, Walker’s injunction is likely to be read much more narrowly, requiring only that officials permit the two same-sex couples who challenged Proposition 8 to wed. Federal district courts generally only have authority to issue injunctions applicable to the named parties in the suit, except in special cases (like class-action lawsuits). 
 
 The court’s decision may make California Gov. Jerry Brown the ultimate arbiter of Proposition 8’s fate. Generally, the executive branch is obligated to enforce laws, even if the governor is opposed to a law’s requirements. Indeed, California officials have continued to follow Proposition 8, declining to issue marriage licenses to same-sex couples. Yet, Brown may decide that, in light of Walker’s ruling, that the ban is no longer good law. He could point to the fact that there’s now a final ruling of a federal court that the law is unconstitutional, and there won’t be any serious political backlash in liberal California. In fact, he’s likely to be hailed as a hero. If, nonetheless, he decides to continue enforcing the ban, he would almost certainly lend his support for another ballot measure in California to overturn Proposition 8 in 2014. Marriage-equality proponents have already promised to push such a measure, which is likely to pass. 
 
 In any event, same-sex marriage is going to be permitted in California within the next 18 months, if not much sooner. This will itself be a major victory for marriage equality. California has approximately 1.1 million LGBT adults and 200,000 people already part of a same-sex couple; they would finally have the option of marriage. Today, only 18 percent of the American population resides in a jurisdiction allowing same-sex marriage. Once California turns, however, that number rises to 30 percent. Marriage equality in California will also mean that nearly 40 percent of the nation’s 650,000 same-sex couples will live in places where they can marry. Yet nothing in today’s opinion requires any other state to allow same-sex marriage. So couples in Mississippi and Alabama will have to wait for another day. 
 
 The DOMA case, United States v. Windsor, also furthers the cause of LGBT rights, but, in many ways, for the wrong reasons. Justice Anthony Kennedy’s majority opinion does discuss equality and recognizes that discrimination against LGBT people is often, like DOMA, merely a reflection of a “bare desire to harm a politically unpopular group.” Yet, again, much of Kennedy’s reasoning focuses on process. One of the main problems with DOMA, he writes, was that Congress, in a blunderbuss fashion, restricted the rights of same-sex couples to more than 1,000 federal benefits and programs that opposite-sex couples enjoy. In doing so, Congress interfered with the state’s traditional authority to regulate marriage. Regulation of marriage “is an area that has long been regarded as a virtually exclusive province of the States.” DOMA, Kennedy explains, “because of its reach and extent, departs from this history and tradition.” 
 
 This language may be celebrated today, but by emphasizing respect for tradition, the court may have sent a signal to lower courts that limiting marriage to one man and one woman remains constitutionally permissible. After all, allowing marriage only between one man and one woman is a longstanding tradition. If a central part of DOMA’s problem was its deviation from longstanding practice, then a state ban on same-sex marriage would not seem to pose the same problem. Moreover, Kennedy’s ode to states’ rights is hardly a boon to marriage-equality proponents. Mississippi and Alabama’s authority to define marriage as they see fit appears to be given constitutional protection. 
 
 There are other important limitations in Kennedy’s ruling that should give LGBT-rights supporters pause. Kennedy rejects the argument of the Obama administration that all laws discriminating against LGBT individuals should be subject to heightened judicial review—the same type of review laws discriminating on the basis of race or sex receive. Heightened scrutiny would have meant that discrimination on the basis of sexual orientation could be constitutional only in exceptional cases, where there was a demonstrably important reason for the disparate treatment and few other alternatives. Under that test, nearly every law discriminating against gays and lesbians would have been called into question, including marriage laws, adoption laws, and blood-donor rules. Yet the court’s refusal may be read by lower courts to mean that LGBT discrimination may still be constitutional, especially when it’s consistent with tradition rather than contrary to it. 
 
 Forsaking heightened scrutiny is on a par with Kennedy’s approach in past gay-rights cases. While Kennedy wrote some major pro-gay rights opinions for the court, those decisions have included caveats and qualifications that limited their impact. He’s consistently refused to say that LGBT classifications should receive heightened scrutiny. His opinion in the much-touted Lawrence v. Texas case, striking down same-sex sodomy bans, refused to say that gays and lesbians have a fundamental right to sexual privacy and made sure that gay-marriage bans weren’t called into question. Indeed, after surveying Lawrence, a federal appeals court said that nothing in Kennedy’s opinion required striking down a ban on gay adoption. Kennedy’s embrace of gay rights has always been hesitant and incremental. DOMA is no different.
– The Supreme Court made a surprise decision this morning by refusing to hear appeals from five states trying to ban same-sex marriage, kick-starting a flurry of "What does this mean?" and "What happens next?" speculation. Some reaction: Under the headline "The Supreme Court Just Quietly Made Marriage Equality The Law Of The Land In Many States," Ian Millhiser writes at ThinkProgress that the "anti-climax" of a decision is, nevertheless, "an earthquake for gay rights" practically speaking. Though Millhiser notes there may be a waiting period and logistical obstacles for same-sex couples, he writes that looming marriages "will make it very difficult for the Supreme Court to reverse course—and retroactively invalidate those marriages—in a subsequent opinion." Over at Slate, Mark Joseph Stern calls the court's move "unexpected and somewhat bizarre," citing his own Slate piece last week in which he noted Justice Ruth Bader Ginsburg's recent comments that there was "no need for [the Supreme Court] to rush" until circuit courts found same-sex marriage bans to be constitutional. He brings up one other interesting point: "If no circuit court ever rules against gay marriage, the gay marriage question will be effectively settled, and the Supreme Court will never have to wade in again." Agreeing that "almost no one expected that to happen," Lyle Denniston writes at SCOTUSblog that the decision was so surprising because: the Supreme Court had actually been asked to review all seven state cases ("a rare thing … that almost never fails to assure review"); that the court appeared to have given recent indications it was ready "to confront the basic issue"; and that today's decision doesn't exactly sync up with last year's ruling in United States v. Windsor, which struck a major blow to the Defense of Marriage Act, as per the AP. Jonathan H. Adler at the Washington Post, however, wasn't terribly surprised, mainly because all petitions before the Supreme Court had already been nixed by lower circuit courts. Instead, Adler wants to know—especially since the decision came with zero comment from the judges—"is what Justice Anthony Kennedy thinks. … Is he ready and willing to hold that the Constitution guarantees a right to same-sex marriage? Or is he still conflicted given his federalist sympathies?"