In the Fisher case on Monday, the Court's four liberals signed onto the decision sending the dispute back to the courts below for more analysis. They did so because they knew that they would not likely like the merits ruling they would get if the Court's five conservatives were to rule substantively on affirmative action. The same thing happened today in Perry, only in reverse. This time, it was the Court's conservatives, at least two of them anyway, who may have figured the best they could do was delay a substantive decision on the interplay between state marriage bans and the equal protection clause of the Constitution.

In any event, that's the broad view of Perry. The Court's majority saw a convenient out -- the issue of standing -- and took it. And now the justices will sit back and watch new legal and political skirmishes arise over the next few years. There will be, indeed there already are, new challenges both to same-sex marriage bans and to same-sex marriage laws. And there are, at the end of all of it, thorny constitutional questions the justices must one day answer about same-sex marriage and its interplay between and among the states and the federal government -- questions Justice Antonin Scalia today asked in Windsor with his usual aplomb.



But there are three more things you ought to know about this ruling. First, the majority opinion reads like an ode to the friend-of-the-court brief filed by Walter Dellinger, the progressive legal scholar and former Obama and Clinton Administration official, who argued that the private parties pushing the Proposition 8 appeal had only a "generalized interest" in the outcome of the case. Chief Justice Roberts cited the Dellinger brief for the proposition that private parties have duties too mercurial to be relied upon. "As one amicus explains," the Chief Justice wrote, "'the proponents apparently have an unelected appointment for an unspecified period of time as defenders of the initiative, however and to whatever extent they choose to defend it.'"

Second, the makeup of the dissent in Perry is telling. It may tell other people other things but it tells me that Justices Kennedy -- ever true to his roots as a supporter of gay rights -- and Sonia Sotomayor were willing to rule on the merits of Proposition 8 in a way that would more broadly recognize same-sex marriage rights, at least in California. And it tells me, on the contrary, that Justices Clarence Thomas and Samuel Alito, win or lose, were spoiling for the opportunity to endorse Proposition 8 as a lawful expression of the public's disdain (at least in 2008) for such marriages. Usually, when the Court punts like it did here, it punts without a 5-4 ruling.

Third, and this is likely to be under-reported in the crush of coverage over same-sex marriage, is the implication of the Perry case on future ballot initiatives, whether or not they have anything to do with gay marriage. As Justice Kennedy pointed out in his dissent, the Perry case, arguably, could permit state officials who disagree with the results of ballot initiatives to routinely walk away from them in a way that thwarts the purpose of the initiative process. I'm not much into guarantees, especially with this Court, but I guarantee you that the Perry case will be cited for this technical proposition far more quickly and more often than it will be cited as any sort of victory or defeat for same-sex marriage advocates.