The statement at issue:

“As happy couples and their loved ones celebrate and prepare for the first weddings in Delaware—following the win in Rhode Island just a few days ago—this milestone sends yet another message to the Supreme Court that it’s time for marriage for all Americans. … We look forward to surging forward and continuing the momentum in Illinois and Minnesota later this month.”

 – Marc Solomon, national campaign director of Freedom to Marry, an advocacy organization promoting same-sex marriage, in a press release May 7 after the Delaware legislature gave final approval to a marriage equality bill.  The governor quickly signed it into law.

We checked the Constitution, and…

If the Constitution takes at least part of its meaning from the way elected officials react to a high-profile public policy issue, the supporters of same-sex marriage have reason to be optimistic right now. In the space of less than a week, Rhode Island and then Delaware became the 10th and 11th states to allow gay marriage (along with Washington, D.C.). But is that a trend that the Supreme Court is ready to advance—or will choose to leave alone to see how it goes?

It has been exactly six weeks since the justices held hearings on two major test cases on the marriage question, and what that means is that draft opinions are now actively circulating behind the velvet curtains, and voting alliances are being shaped. The focus, at this point, is very much directed inwardly: to the record of the hearings, to the stacks of legal filings, and to the comments in notes or conversations among the justices and their law clerks.

By now, one justice has been assigned the task of composing an opinion for the court in each case (probably not the same justice for both), and the other members of the court are sending brief notes indicating whether they will join that opinion, whether they will or might dissent, whether they might write separately. They are, in fact, actually trying to influence the final shape of what could become the court’s main opinion in each case—if a majority can come together on a main opinion.

And it is not difficult to imagine that one of the lines of conversation or of the written exchanges is whether the court needs to take a definite position on the constitutional questions at this point, because the legislatures are taking on the issue at an apparently increasing pace, and the trend is running strongly in favor of expanding marriage rights.

Even exchanges along that line, though, are part of the current process of trying to influence votes. An argument that the issue should be left to the political realm might cut either way. It could be used by those justices who, as of now, appear to be on the losing end because the preliminary voting pattern in one or both cases went against their view.

If the majority is moving toward embracing same-sex marriage, the political trend in that same direction is an argument for deciding the pending cases only on very narrow grounds, or for finding a way to bypass them. But if the majority is leaning against such marriages, the political trend in the opposite direction might counsel against a ruling that could signify an attempt to stifle the trend, to keep it from spreading to other states.

Such contentions might sound like political argument, but they are institutional claims. The use of judicial power is a strong instrument in a democratic society, and the court has a long tradition of trying to avoid major constitutional judgments if they are not really necessary. Although it has often been said that the court follows the election returns, a “bandwagon effect” seldom drives Supreme Court decisions on the meaning of the Constitution.

If the justices are reading the news about what is happening in the legislatures and in the political realm, and at least some of them almost certainly are, they will be aware that there is a trend, but that it is regionally limited, so far. It is not sweeping the South or the Southwest, and is largely concentrated along the Eastern Seaboard, with some potential for moving soon into the Upper Midwest. And the justices will know that, even with Rhode Island and Delaware putting the marriage equality total at 11 states, there still are 39 that have not joined in.

That information, too, might carry with it a note of caution. The majority of the court might not be ready to rule sweepingly, to turn the recent trend into a national constitutional command. A decision that the Constitution guarantees marriage equality would be binding nationwide and would, in one fell swoop, order 39 states to begin issuing marriage licenses.

Although there is obviously a great public fascination with what the court may do with the same-sex marriage issue, that does not guarantee that the justices are on the verge of a full-scale declaration for or against such marriages. The court has mechanisms available to it to dispose of the cases on less sweeping grounds, and leave the ultimate constitutional issue for a day in the future.

If the court does opt for a narrow or cautious approach, that would be a clear signal to the advocates on both sides that, for the time being, this is an issue for the political arena and the maneuvering would continue one state at a time.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Almost two decades ago, Gallup polled on the question of legalized same-sex marriage, and 27 percent of those surveyed thought same-sex marriages shouldn’t be legally valid.

Today, in an average of 10 recent polls compiled by Constitution Daily, 52 percent of Americans believe same-sex marriages should be legal, while 42 percent of people didn’t believe in the legality of such unions.

The polls we looked at included our own annual poll, done in conjunction with the Associated Press; surveys from Gallup, Quinnipiac, and Pew Research; and polls from Fox News, ABC, NBC, and CBS.

The controversy over recent polls has been partly about the wording of questions, including the use of the word “illegal” in questions about same-sex marriage.

The Family Research Council, a group that opposes same-sex marriage, has pointed out that Americans, in general, will vote against anything with an “illegal” connotation, and that word choice prejudiced the results.

In fact, the two polls showing the highest support for same-sex marriage did include the words “illegal” or “not legal” in their questioning.

But when those two polls are discarded, and the remaining eight polls are added up, the results are very similar, with 51 percent of Americans supporting gay marriage and 43 percent opposing it.

What all 10 polls had in common were the concepts of “marriage,” “same-sex couples,” and “valid” or “legal” in the questioning.

The closest gap in any poll was in a recent Fox News survey that found that 49 percent of people supported same-sex marriages, while 46 percent opposed them.

A Washington Post/ABC News poll found a 58 percent to 36 percent difference on the issue, which is also much different from an August poll from the same group, which showed a 53 percent to 42 percent difference.

Even in the Fox News poll, long-term changes in public opinion were apparent. In 2004, only 20 percent of people polled by Fox supported same-sex marriages.

The other controversy is about the vast difference in the number of states with legal provisions against gay marriage, compared with states supporting it.

Currently, 30 states have bans on same-sex marriage, and nine states, along with the District of Columbia, have legalized it. And additional 11 states have civil unions or domestic partnership provisions.

In the last five ballot measures on the issue, voters in four states approved gay-marriage measures.

There is some agreement that polls overestimate voting performance on the same-sex marriage issue.

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The Washington Post’s analysis of the polling trends points to a 2010 study from New York University, which showed that polls typically undermeasured the number of people who would vote against same-sex marriage in a state referendum.

But the Post also points to the same conclusion that The New York Times’ Nate Silver has reached: that there is steady trend of rising support for same-sex marriage nationally.

“If the current trajectory continues, it’s going to simply be a matter of how big the majority of Americans who support gay marriage is, and how quickly it takes effect across the country,” the newspaper said.

The Times’ Nate Silver looked at most of the same basic numbers we evaluated, for eight polls taken in 2013, including two Fox News polls, and his composite numbers were 51 percent in favor and 42.5 percent against same-sex marriage.

His analysis includes detailed projections about when more states are likely to approve same-sex marriages, if the Supreme Court or Congress doesn’t take action of a federal level.

By Silver’s count, key states such as California, Illinois, Pennsylvania, Colorado, Wisconsin, Minnesota, and Michigan will have a majority of voters in 2016 that would likely support same-sex marriages in a ballot initiative. And Ohio, Virginia, and Florida would also have a majority of voters in the Yes column.

Composite Poll: In Favor Same-Sex Marriage?

Source                 Yes         No

CBS News              53 %     39%
Fox News               49%      46%
CNN                        53%      44%
Pew                         49%      44%
WaPo/ABC            58%      36%
Quinnipiac            47%       43%
PRRI                       52%      42%
NBC                        52%      40%
Gallup                    53%       46%
AP-NCC                 53%       42%

Average               52%      42%

If the dominant themes that emerged during two historic days of constitutional argument at the court hold true in the end, it would appear that the justices are–more likely than not–going to pass the issue largely back to the political realm, of state legislatures and voter referendums.

Two laws against same-sex marriage, one state and one federal, were being tested in the court’s overcrowded chamber Tuesday and Wednesday, and there was a strong suggestion that neither one of them would survive the test. But that might happen on such narrow grounds that the nation would not know much more about the constitutional rank of gays and lesbians than it did before this week.

Taking stock of where the gay rights movement was before the justices stepped in as constitutional actors, it is clear that the striving for legal equality was advancing, and perhaps at a surprising pace.

The federal ban on gays and lesbians serving openly in the U.S. military, an institution that enjoys special honor and prestige in America, has ended. And more cities around the nation are passing laws to protect homosexuals from discrimination in jobs and life’s other pursuits.

Next month, Colorado will become the ninth state to give same-sex couples virtually all of the benefits of being married, except marriage itself. And campaigns to win the actual right to enter marriage may be approaching success in Illinois and New Mexico, which would make them the 10th and 11th states to do so.

And, with notable frequency, new popular opinion polls suggest that a rising proportion of the population favors increased opportunities and rights for homosexuals, including support for same-sex marriage itself.

On the second day of the court’s hearing on marriage rights, Chief Justice John G. Roberts Jr. made a somewhat sardonic comment, but it was one that took note of the changing political atmosphere. He told a gay rights lawyer arguing against the Defense of Marriage Act: “As far as I can tell, political figures are falling over themselves to endorse your side of the case.” He presumably meant not just her side of this particular lawsuit, but her general plea for legal equality.

So, as those hearings unfolded, the question arose: Is the court ready to hand the gay rights campaign a major constitutional victory, a major setback, or something in between? The court had not decided a significant gay rights case in the past decade; the last was a historic decision in 2003 finding a constitutional right of privacy for homosexuals in their private sexual intimacy.

The court stepped back into the debate over gay rights when, in December, it accepted review of the two cases–one on the federal DOMA law from 1996, restricting federal marital benefits to opposite-sex couples, and the other, on California’s Proposition 8 enacted by the state’s voters in 2008, banning marriage for same-sex couples.

Both of those laws, of course, reflected the political reality of their day: The gay rights movement was active then, gaining in some areas, but not making great gains politically. That appeared to have at least begun to change last November. With the marriage equality movement’s first victories at the polls, same-sex marriage became legal in Maine, Maryland, and Washington state.

As nearly four hours of hearings before the justices played out, it appeared that the most likely prospect was that gay rights might well gain, but not sweeping victories. The federal Defense of Marriage Act appeared to be the most vulnerable, but not on a truly broad constitutional basis; it seemed that the court would strike it down, but on the premise that it was an invalid congressional intrusion into a field traditionally controlled by state laws.

If DOMA did fall on that basis, the court would not have decided whether to establish a new and tougher-to-meet constitutional standard for laws treating gays and lesbians less favorably; that calculus is reserved for claims of discrimination, not for arguments about interfering with states’ rights.

And Proposition 8 appeared to be likely to fall, too, but not because the court would expressly strike it down as an unconstitutional violation of equality, but because the justices had concluded that the test of its constitutionality was one that they should not even have taken on at this point. Such a result would leave intact a federal appeals court ruling nullifying Proposition 8 on a basis so narrow that it would apply to California only, and say nothing about laws against same-sex marriage in other states.

If those are the outcomes that are to emerge, when the court decides the two cases before going off on its summer recess, then the justices essentially would have handed back to the democratic process the question: Where do gay rights go from here?

No doubt, other constitutional controversies over the rights of gays and lesbians will be working their way up toward the Supreme Court, but probably not until after the political community has further opportunity to determine at least the short-term prospects for the movement.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The DOMA case doesn’t involve a basic question about an equal right to marriage, since the couples who challenged that law are already legally married in their states.

The hearings concluded early Wednesday afternoon. Listen to the official audio from today’s oral arguments here (audio will be available Wednesday afternoon).

Early reports from The Wall Street Journal indicated that the court’s conservative justices were critical of the Obama administration’s refusal to defend DOMA in court.

In one exchange, Chief Justice John Roberts said the Obama administration should have the “courage” to defend DOMA, rather than let the Supreme Court decide who has the ability to defend the law.

But Justice Kennedy, a key swing vote on the court, also voiced concerns about the ability of the federal government to define marriages for the states.

SCOTUSblog publisher Tom Goldstein said on his Twitter account that he believed after seeing the arguments that there was an 80 percent chance the court would strike down DOMA.

The question at hand is if Congress has the constitutional power to deny married same-sex couples benefits given to opposite-sex couples under about 1,100 federal programs or services.

DOMA was passed by Congress in 1996 after fears that Hawaii’s Supreme Court was considering the constitutionality of same-sex marriages. The federal benefits denied by DOMA to married same-sex couples include the right to file a joint tax return and to obtain a Social Security death benefit.

The case is United States v. Windsor. Edith Windsor is contesting a requirement that she pay $363,000 in federal estate taxes inherited from her late same-sex married partner, which she wouldn’t have been obligated to pay if she were married to a man.

On Tuesday, the court heard arguments about Proposition 8, a law in California barring same-sex marriages that was later overturned by two other courts.

Like Proposition 8, the justices were expected to hear arguments in the DOMA case about whether the case had legal standing and could even be considered by the high court.

The Obama administration decided not to defend DOMA in court in 2011, and instead several Republican congressional leaders pursued the defense.

Under the Constitution’s Article III, the court must have before it a live “case or controversy,” with a party on each side with a direct, not a theoretical, interest in the outcome.

In the DOMA case, Republican leaders have challenged the right of the federal government to appeal, and the federal government has challenged the GOP leaders’ right to make a defense of DOMA.

What’s unknown at this point is if the Supreme Court, when it issues rulings in late June, will take any stance on the same-sex marriage issue, aside from agreeing to hear the DOMA and Proposition 8 cases.

Some observers of the Proposition 8 hearings on Tuesday believed the court could say in June that the Prop 8 case didn’t have standing, and it would be invalidated or returned to a lower court.

But others believe the court could have a logic that is shared between the Prop 8 and DOMA cases.

Still others point back to last year’s instant analysis of the Supreme Court’s hearings on the Affordable Care Act. In March 2012, pundits were forecasting the ACA would be struck down by the justices, based on their line of questioning in the hearings. But in June 2012, most of the ACA stood intact after the court’s ruling. Two of the attorneys in court on Wednesday for the DOMA case also argued the ACA case last year: U.S. Solicitor General Don Verrilli Jr. and former Solicitor General Paul Clement.

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The statements at issue:

“The problem with this case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters.”

– Supreme Court Justice Anthony M. Kennedy, in a comment during Tuesday’s hearing in the Court on the constitutionality of California’s Proposition 8 ban on same-sex marriage. He was addressing lawyer Theodore B. Olson, representing the challengers to that law.

“You might address why you think we should take and decide this case.”

– Justice Kennedy, in a comment Tuesday to lawyer Charles J. Cooper, representing the sponsors of Proposition 8, the measure approved by California voters in 2008.

We checked the Constitution, and…

In the two and a half years since a federal judge in San Francisco ruled that California voters had violated the U.S. Constitution in passing Proposition 8 and banning same-sex marriage in that state, there has been a slow but steady buildup of anticipation for the day that the controversy would reach the Supreme Court. Some of that was misplaced, because the Constitution simply does not require the justices to resolve every dispute, however big it is, that comes to them.

Proposition 8 finally got a full airing in the court on Tuesday, but in what may seem like a national letdown, the justices may have been sending a message that they won’t decide this case after all. They surely will dispose of it; the case won’t just languish on the docket. But the outcome that seemed a real possibility after an 80-minute hearing is that the court would walk away from the case without settling anything–at this point, at least–about the claims to same-sex marriage rights.

This is not the stuff of headlines about the way the Supreme Court does its work. The news media, and maybe the public in general, are geared to expect important constitutional rulings coming out of the court, definitely resolving some major controversy–for example, last year’s decision upholding the new federal health care law.

So it may be hard to grasp why the court would conclude, after enormous effort on Proposition 8 by lawyers and by the justices and their clerks, not to decide such an important case. (A cautionary note here: The initial impression might prove flawed, and the justices just might find a way to reach a decision, later on. But, based on Tuesday’s hearing, that would definitely be a surprise.)

The comments quoted above by Justice Kennedy provide, with some explanation, the possible reasons that would lead the court away from a decision this time. And it became very important to focus on how Kennedy reacted, because the rest of the court appeared to be quite deeply divided on the ultimate question of same-sex marriage, so he may well be holding the deciding vote.

Kennedy’s remark about “uncharted waters” was typical of several comments he made suggesting that America does not have much experience yet with same-sex marriage, and so the social science data about its impact on families, on children, and on the institution of marriage itself, might be regarded as debatable. Does the court want to order marriage open to same-sex couples without knowing more about it?

That was what Kennedy indicated was his concern. But beneath that, it was clear, was a hesitancy to establish a major new constitutional breakthrough right now, when the country remains deeply divided on the underlying dispute, even if popular attitudes may be changing in favor of equality for gay and lesbian couples.

And Kennedy’s question about whether the court should even have agreed to hear this case suggested that he was thinking of a way out in case the justices could not come together on a definitive ruling on same-sex marriage. Even after the court has agreed to review a case, it can change its mind and conclude that doing so was a mistake.

The court has almost total discretion on how it draws up a list of cases that it is willing to decide. While there are a few areas of the law where Congress has indicated that it wants the court to decide cases in those areas, the justices still have devised ways to avoid doing so if they conclude that they don’t want to spend their time on a given case.

When Kennedy asked an attorney to justify the court’s review of Proposition 8, he was conveying the message that this might have been one of those occasions when the court had reached before it was ready. If enough of his colleagues were ultimately to share the view that taking on same-sex marriage at this point was premature, the California case could end in what would amount to a judicial whisper.

As the Tuesday hearing was nearing its end, Justice Sonia Sotomayor indicated that Kennedy’s musing about not reaching a decision on the dispute at this point might well be catching on with other members of the court. In a rhetorical question, she asked attorney Cooper: “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?”

This morning, the court was taking another look at same-sex marriage, in a case involving the constitutionality of the federal Defense of Marriage Act. That case, though, does not involve a fundamental question about an equal right to marry, since the couples who challenged that law are already legally married. Rather, it involves whether Congress had the constitutional authority to deny married same-sex couples the same marital benefits that are given to opposite-sex couples under about 1,100 federal programs or services. (Constitution Daily will report tomorrow on how the justices reacted to that case.)

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The influential SCOTUSblog says that Associate Justice Anthony Kennedy seemed “very uncomfortable” during the hearings about striking down Proposition 8 in its entirety.

Proposition 8 was a measure passed by California voters that barred same-sex marriages in the state. A higher court later overturned Proposition 8 as unconstitutional, as did a lower district court.

Kennedy is seen as the swing vote on the case.

SCOTUSblog publisher Tom Goldstein said on the site’s Twitter account that Kennedy’s behavior indicated the court may dismiss the case entirely, leaving in place the lower district court ruling that overturned Proposition 8.

“Arguments done. #scotus won’t uphold or strike down #prop8 [because] Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated,” Goldstein said on SCOTUSblog’s Twitter account.

Goldstein later explained his logic in a blog post.

“Several justices seriously doubt whether the petitioners defending Proposition 8 have ‘standing’ to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the court would vacate the Ninth Circuit’s decision,” he said.

Link: Lyle Denniston explains the Prop 8 and DOMA cases

CNN’s Jeffrey Toobin was also in the courtroom and indicated that the conservative justices on the bench weren’t leaning toward a Supreme Court ruling that would directly strike down or uphold the law.

“Kennedy suggested the issue was brought prematurely before the court,” Toobin said on CNN.com. But Toobin didn’t make a prediction about the court’s ultimate ruling.

The final ruling won’t come until late June, and as court watchers saw last year, a Supreme Court ruling is never final until it is delivered in court.

Today the court was hearing oral arguments in the case of Hollingsworth v. Perry.

One big issue in the case has been the legal standing of Proposition 8’s supporters to sue.

Two high-profile attorneys representing Proposition 8’s opponents, David Boies and Ted Olson, believe that Proposition 8’s supporters don’t have legal footing to sue because they won’t be personally hurt if California allows same-sex marriages.

Proposition 8’s supporters think they have legal standing under California’s laws. Former California governor Arnold Schwarzenegger and his successor, Governor Jerry Brown, turned down defending the state law.

On Wednesday, the Supreme Court will hear arguments in another same-sex marriage case about the Defense of Marriage Act, which restricts federal marriage benefits to same-sex couples.

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The statement at issue:

“Every action that demonstrates that our culture is changing, and that the nation is ready for legalized gay marriage, could influence the Supreme Court in its upcoming hearings. Most legal observers believe the justices won’t want to get too far ahead of public opinion when they rule on the Defense of Marriage Act and California’s Proposition 8.”

– Greg Sargent, Washington Post columnist, in an op-ed article on March 19 commenting on a new Post-ABC poll showing that public support for same-sex marriage had reached a record high, 58 percent to 36 percent.

We checked the Constitution, and…

In 1788, when Alexander Hamilton was promoting ratification of the Constitution, he wrote in Federalist No. 78: “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority … Limitations of this kind can be  preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all laws contrary to the manifest tenor of the Constitution void.”

If public opinion polls had existed then, it seems likely that Hamilton would not have wanted them to have a controlling influence on “the courts of justice.” The concept of a truly independent judiciary proceeded–then as now–from an idealistic conception of judicial detachment from the shifting winds of politics. If a court is to have the awesome power to strike down laws passed by the people’s elected representatives, it had better not be perceived as just another politically-driven body–and polls are no more than political expressions.

That is not to say that the members of the Supreme Court, or of any other court, are to spend their working lives in a cloistered enclave, entirely oblivious to the world outside their marbled halls. Controversy enters the courthouses directly in the form of very real legal feuds that very often reflect the tensions and conflicts of a current time.

And lawyers, in bringing cases into the courts, do not hesitate to inform the judges about how this or that lawsuit fits into the cultural trends of the day. That happened, for example, when lawyers for two same-sex couples in California filed a document in the Supreme Court last summer, as the justices were just beginning to think about getting involved in the controversy over gay marriage.

That document told the justices: “It fairly could be maintained that the question whether the states may discriminate against gay men and lesbians in the provision of marriage licenses is the defining civil rights issue of our time.”

That, of course, was putting the matter in the most favorable light for the same-sex couples, and it might well have been understood as something of a dare to the court not to ignore a cultural (and political) environment that was said to be changing rapidly.

It is now apparent that the court, whether or not it agreed with the sentiments behind that statement, considered the issue to be significant enough to warrant the court’s review of two major cases–one on claims to marriage equality at the state level, and one on the federal level. Those cases come up for historic hearings next week, and the justices no doubt are fully aware that whatever they decide may well influence how the cultural trends move from then on.

But this will not be a decision, or decisions, guided by the latest popular poll results. This is, after all, still a court, and as such it proceeds through well-established procedures that depend upon having two or more distinct sides in a controversy fully aired, on the premise that a sharply contested argument is still the best way to lead toward sound legal judgment.

If the court does get to the heart of the constitutionality of either or both of the laws coming before it–California’s Proposition 8 or the federal Defense of Marriage Act–it will be ruling for or against the political judgment of millions of California voters on the one, and the judgment of very large majorities in Congress on the other. (There are procedural reasons why the court might not rule in a final way on either of the laws’ constitutionality, but the justices may decide not to take that way out of deciding the deeply controversial questions at issue.)

Jousting with political majorities is the stuff of judicial review, but it is not a form of political sport; rather, it is a truly daunting task that no judge will claim is easy. And it has to be carried out in a way that can lead to an outcome that has a realistic chance of being accepted as legitimate.

Here is how the court once defined the task that it now faces in the same-sex marriage cases, as it would in any other case with such high stakes for America: “The Court must take care to speak and act in ways that allow people to accept its decision on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.”

Obviously, that is an aspiration that cannot be achieved simply by counting up the numbers reflected in a political poll.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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This marked the federal government’s first entry into the controversy that has occupied the federal courts continuously since Proposition 8 was challenged in a potentially landmark federal court case four years ago.   President Obama, of course, has said that he favors allowing gays and lesbians to marry the persons they love, but his government has never sought explicitly to have the courts open marriage to those couples.

Rather than seeking a nationwide ruling to give same-sex couples marriage equality everywhere in the U.S., the administration’s lawyers offered a legal formula that would almost immediately make marriage available to gays and lesbians only in eight states–including California–that do not now allow it.

In addition to California, those states are Delaware, Hawaii, Illinois, New Jersey, Nevada, Oregon, and Rhode Island.

Considering what the administration might have proposed, that request qualified as quite modest. After all, the two same-sex couples who originated the challenge to Proposition 8 are asking the court to strike down marriage bans for such partners all across America, wherever that is still banned.

But, in order to get to the result the administration is seeking (the overturning of the 2008 ballot measure adopted in the Golden State), the new legal brief filed for the government suggested that the court adopt a sweeping new constitutional test that clearly has the potential to nullify laws of many kinds that treat gays and lesbians less favorably than straight people.

If the court were to mandate that test (which judges and lawyers call “heightened scrutiny”), that might one day mean the end of all bans on same-sex marriage, too. The administration was not seeking that result at this point, the brief made clear.

In fact, at one point in the new brief, the government’s attorneys said the court could decide the pending case on Proposition 8 without having to decide what the Constitution might require “under circumstances not present here.” That somewhat opaque phrase was meant to emphasize that the government was not asking the court to treat the basic right to marry, which the Constitution clearly protects, as an institution open to all same-sex couples.

In effect, the arguments made on Thursday offset the goal of advancing the cause of marriage equality to an important degree with a hesitation to push that goal from coast to coast. So, if the court were to follow the path suggested by the government, it very likely would mean that same-sex marriage would, for the time being, remain banned in 33 states (down from the current number, 41).

This arithmetic needs a bit of explaining. There are nine states out of the 50 that currently permit same-sex marriages, along with Washington, D.C. Such marriages are not allowed in the other 41. How would a court decision of the kind the government was suggesting get that number down to 33?

Eight states, including California, now provide all or nearly all of the benefits and legal rights of marriage to both same-sex couples and opposite-sex couples, so they are treated equally in that respect. But, in those states, only opposite-sex couples can go beyond their access to those benefits, and legally get married.

It is those eight states that are the target of the Obama administration’s legal challenge, even though it is framed as a challenge only to California’s Proposition 8.  The argument that was made, in fact, is widely known by the phrase, “the eight-state solution” for same-sex marriage rights. The government was not proposing a “50-state solution.”

Under the government’s argument, the constitutional problem arose when the voters of California took away the marriage right for same-sex couples even as they left intact all of the marriage-like benefits for those couples.

When judged by a tough constitutional standard, or “heightened scrutiny,” that differing treatment of same-sex couples violates the Constitution’s guarantee of legal equality, under the 14th Amendment, the brief asserted.

Proposition 8, the brief contended, “forbids committed same-sex couples from solemnizing their union in marriage, and instead relegates them to a legal status–domestic partnership–distinct from marriage but identical to it in terms of the substantive rights and obligations under state law.”

The designation of marriage, the brief said, “confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”

Examining one by one the arguments that the sponsors of Proposition 8 make for that measure, the administration document found each of them insufficient to make up for the discrimination it argued is the result of that measure.

So, without any justification that would promote “any important governmental interest,” the brief said, Proposition 8 in the end emerges only as the product of “impermissible prejudice” against gays and lesbians.

Although the approach the administration has taken in this new filing is notably more modest than the gay rights community had hoped, and that the two same-sex California couples are still pursuing before the court, the administration’s argument does give the justices the option of deciding the pending case more narrowly, if they are not yet prepared to address same-sex marriage as a national issue.

What the brief did leave totally unmentioned, though, was that the court’s endorsement of the tough new constitutional test put forth by the administration would amount virtually to a very broad foundation for a historic new era of gay rights, going well beyond Proposition 8 and even beyond marriage.

Even though unacknowledged, that is the potential that could be seen between the lines of 32 pages of legal reasoning.

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The news comes on the same day that President Barack Obama will file his own “friend of the court” brief urging the Supreme Court to overturn Proposition 8, the ballot initiative that banned same-sex marriage in California.

The court is expected to hear the case on March 26. The justices will listen to arguments about a related case, the Defense of Marriage Act, on March 27.

Solicitor General Donald Verrilli will file the brief on behalf of the Obama administration.

More than 100 people with current or past connections to the Republican Party or conservative causes have signed briefs in the case.

The website Brietbart.com first reported that Eastwood signed the brief. Eastwood made national headlines this summer when he appeared at the Republican National Convention and spoke to an empty chair onstage.

On Tuesday, the American Foundation for Equal Rights said that more than 80 “political and social conservatives” had signed the brief, and more signatures were expected.

Names on the brief include Mary Bono Mack, Gary Johnson, Jon Huntsman, William F. Weld, Christine Todd Whitman, and Meg Whitman.

Two prominent lawyers, Democrat David Boies and Republican Theodore B. Olson, will take the argument against Proposition 8 to the Supreme Court.

If those names sound familiar, it’s because they were also the top advocates in the 2000 Supreme Court case Bush v. Gore, with Olson representing George W. Bush and Boies representing Al Gore.

Another brief in the case was filed by two National Football League players, Chris Kluwe and Brendon Ayanbadejo.

“America has walked this path before, and courageous people and the court brought us to the right result. We urge the court to repeat those actions here,” the athletes said in a brief that was filed this month.

The recent news of Republicans supporting gay marriage is, of course, in contrast to the stance of House Republican leaders. In February 2011, when the Obama administration announced it would no longer defend Section 3 of the Defense of Marriage Act (which is being considered in another case, Windsor v. United States), the Bipartisan Legal Advisory Panel of the House voted to stand in to defend the law.

The court is expected to announce a decision in the Proposition 8 case in June.

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In late January, the national group confirmed it was in serious talks about changing its controversial policy that excludes gays.

But on Wednesday, the Boy Scouts of America’s board said a decision wouldn’t be reached until May, at the earliest.

“In the past two weeks, Scouting has received an outpouring of feedback from the American public. It reinforces how deeply people care about Scouting and how passionate they are about the organization,” the group said in a statement.

“After careful consideration and extensive dialogue within the Scouting family, along with comments from those outside the organization, the volunteer officers of the Boy Scouts of America’s National Executive Board concluded that due to the complexity of this issue, the organization needs time for a more deliberate review of its membership policy.”

The decision that was under consideration would move any policy about including gays in the Scouts to a local level, and away from the national group.

The battle between the Scouts and groups who want the organization to include gays dates back to a historic Supreme Court decision in 2000.

In a 5-4 decision, the Supreme Court said in Boy Scouts v. Dale that the Scouts had a right to exclude a leader who openly stated he was gay.

“The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints,” the court said in a majority opinion from Chief Justice William Rehnquist.

In a Constitution Check article for Constitution Daily last year, Lyle Denniston explained why that 2000 decision may not have been the final word in the situation.

“In court, the Scouts have argued that the decision in the Dale case 12 years ago provides First Amendment protection for the ban on homosexuals, both as to adult leaders and to youthful members, while challengers have contended that the decision dealt only with its specific facts–exclusion of an adult leader who was a public advocate of gay equality,” Denniston said.

One reason for the delay, says The New York Times, is that the decision would “create a huge new moment of risk, experimentation and change people on both sides of the issue said.”

“The proposed change created multiple fracture lines of its own. Some supporters of the ban said they feared a wave of departures by conservative church-sponsored troops, while supporters of the change said that scouting, with fewer boys every year donning the tan uniform to work for merit badges, would be revitalized.”

On a local level, many organizations are sponsored by churches, and some have objections to a proposed policy change by the national group.

But on a national level, some sponsors have been critical of the ban.

A new Quinnipiac poll shows a similar divide on the issue. Overall, 55 percent of those polled favored ending the national ban. But among white evangelical Protestants, 56 percent opposed ending it.

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