The decision leaves same-sex-marriage advocates with less leverage over Obama. | AP Photos Prop 8 ruling takes heat off Obama

For gay rights advocates celebrating Tuesday’s same-sex marriage ruling, it’s not all good news.

By overturning California’s Proposition 8 but stopping short of declaring a federal constitutional right for gays to marry, the Ninth Circuit dashed hopes it would spur a major national debate on the issue and nudge President Barack Obama into an election-year embrace of same-sex marriage rights.


That’s a key nuance: The court said California had no acceptable reason to take those rights away once they’d been granted, but dodged whether the state would have been obliged to recognize same-sex marriages if it hadn’t already done so.

Richard Socarides, president of Equality Matters, a gay rights advocacy group, said that if the court had ruled that there was an inherent right, Obama would have been in an awkward political spot that marriage equality advocates could have leveraged.

“Where he potentially could have gotten into trouble would have been to have a federal appellate court ruling that there’s a constitutional right to same sex marriage and for him to be kind on the wrong side of that,” Socarides said.

“There is good and bad in this,” said one prominent gay rights activist, who asked not to be named. “The bad part is there is no compelling reason for the president to speak up before the election.”

The appeals court’s 2-1 decision Tuesday declared that the 2008 California Proposition 8 was unconstitutional because it removed the marriage rights granted by a court decision six months earlier and “has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

But there were hopes that the court would go further and set the stage for a bigger victory.

“In the short term, the decision does very much dial down the pressure as a campaign issue between now and the election,” Socarides said. “I still think [Obama will] have to say more directly what his own view is, but that day has not been brought forward by this decision the way some of us thought it might be.”

The White House brushed aside questions Tuesday about Obama’s view on the Prop. 8 decision, while also refusing to shed light on the state of Obama’s thinking on the broader issue.

“However you might want to tease out an evolutionary position on this…I have no announcement of any position,” White House press secretary Jay Carney said Tuesday.

In October 2010, Obama stoked the hopes of gay rights advocates by declaring that his views on same-sex marriage were evolving.

“I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage. But I also think you’re right that attitudes evolve, including mine,” Obama said during a roundtable with liberal bloggers. “It is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents. And I care about them deeply,” while adding he wasn’t prepared to “reverse” himself right then.

There are people on both sides of the debate who believe the views Obama expressed against same-sex marriage during the 2008 presidential campaign were not sincere. They note that in 1996, as a state Senate candidate in Illinois, he embraced the idea. “I favor legalizing same-sex marriages,” he wrote then.

But while the White House steered clear Tuesday, three of the GOP presidential contenders immediately jumped in, potentially ratcheting up the political pressure for the man they hope to face in November.

“Unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court,” Mitt Romney said in a statement. “That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”

“With today’s decision on marriage by the 9th Circuit, and the likely appeal to the Supreme Court, more and more Americans are being exposed to the radical overreach of federal judges and their continued assault on the Judeo-Christian foundations of the United States,” Newt Gingrich said in his statement, predicting “a constitutional crisis of the first order” if the Supreme Court upholds Tuesday’s ruling.

“The people of California spoke clearly at the ballot box that they wanted marriage defined in the traditional manner of one man and one woman. And for a court, any court, to usurp the power and will of the people in this manner on an issue this fundamental to the foundation of our society is wrong,” said Rick Santorum.

The Alliance Defense Fund is planning to appeal the decision, which could put it back in the courts even closer to the election.

However, one of the lawyers who brought the California case, David Boies, said Tuesday that the narrowness of the 9th Circuit’s decision might keep the case out of the Supreme Court for now.

“The grounds for the opinion, in my view, do make it somewhat less likely that the Supreme Court will take it,” Boies said during a conference call with reporters. “The court might not want to take this issue on those facts and might want to wait for a case that would raise the more general issue.”

Boies’s co-counsel, Ted Olson, said that when the issue does reach the Supreme Court, the nuances of the 9th Circuit decision may not matter.

“Our opponents may say they’ve lived to fight another day. They may live to fight another day, but they will lose,” Olson said emphatically.

In the meantime, even if the ruling keeps same-sex marriage advocates from pressuring Obama to embrace their position, opponents said that they could use it as a rallying point for social conservatives — and, therefore, create a setback for Obama this fall.

“I would think it would hurt the president and help motivate our folks,” said Tom McClusky of Family Research Council Action. “In a number of the key states — Ohio, Florida, Virginia — they all have [anti-same-sex] marriage amendments. The president, if he campaigns in those states, now will have to be asked, or should be asked at least, where do you stand and do you think the 9th Circuit was right?”

“This is a national issue. He successfully avoided it even in California last time around. I don’t see how he avoids it this time,” McClusky added.

