The U.S. Supreme Court was unexpectedly silent Friday about whether it will take its first look at same-sex marriage, in cases involving California's Proposition 8 and a law banning federal recognition and benefits for married same-sex couples.
The court could take action Monday, and among the possibilities are an order that would clear the way for gay and lesbian couples to marry in California within the week. Friday's inaction, however, could also be a signal that the justices need more time to plot their course on the issue.
Prop. 8, the November 2008 initiative that defined marriage as the union of a man and a woman, was declared unconstitutional by a federal judge in 2010 and by a federal appeals court in February, but remains in effect while its sponsors seek Supreme Court review.
When the court met Friday for its weekly private conference, in which it decides whether to review hundreds of appeals of rulings by lower courts, the Prop. 8 case was on the agenda along with five cases on the 1996 federal law known as the Defense of Marriage Act, or DOMA.
That law denies more than 1,000 spousal benefits, including joint tax filing, Social Security survivor payments and immigration sponsorship, to same-sex couples who married under the laws of their states.
It has been declared unconstitutional by two federal appeals courts and a number of U.S. District Court judges, including two in the Bay Area. Those courts have generally found that Congress engaged in discrimination by departing from the federal government's usual practice of respecting a state's definition of marriage.
Reading the court
The Supreme Court almost always reviews appeals of rulings that strike down federal laws, so it is widely expected to take up at least one of the DOMA cases and issue a nationwide ruling on the law's constitutionality by the end of its term in June.
The outlook is less clear for Prop. 8.
February's ruling by the Ninth U.S. Circuit Court of Appeals sidestepped the question of whether same-sex couples have a constitutional right to marry, and instead overturned the measure on narrow grounds: that it revoked marriage rights that the California Supreme Court had granted less than six months earlier to a historically persecuted group and did so for no evident reason other than moral disapproval.
That ruling, if it stands, would apply just to California, the only state that has granted and then withdrawn same-sex marriage rights.
In their Supreme Court appeal, however, Prop. 8's sponsors described the ruling as a "judicial death sentence for traditional marriage laws" and urged the justices to affirm a state's authority to ban same-sex marriage.
It has been nine years since the court last ruled on a sexual orientation issue, striking down state criminal laws against gay sexual activity but disavowing any implications for same-sex relationships.
Since then, nine states have legalized same-sex marriage, the last three in unprecedented votes on Nov. 6, and polls indicate public opinion has swung in favor of same-sex marriage. Some court commentators say the changes will influence the justices' attitudes toward the current cases.
"Judges are part of the same culture as the rest of us," said Jane Schacter, a Stanford law professor. "Institutionally, the court does not like to get too far out ahead of public opinion."
The election results aren't likely to affect the court, but "what's considered rational and irrational is often influenced by general thinking in society," said UCLA law Professor Eugene Volokh. Not long ago, he said, same-sex marriage "wasn't thinkable. Now it's thinkable."
Awaiting Monday
After Friday's conference to consider pending appeals, the high court announced that it had granted review in two unrelated cases but did not mention Prop. 8 or the DOMA cases. Its next orders, due Monday, usually list cases in which the justices have denied review and allowed the lower-court ruling to stand.
If Prop. 8 is on that list, the Ninth Circuit ruling will become final within days, and same-sex marriages will be legal in California for the first time since 2008.
But if the court continues to consider the marriage cases together, as it has so far, its silence Friday may indicate that it hasn't yet decided whether to review any of them.
Its next conference is scheduled Friday. Four votes are needed to grant review by the nine-member court.
The Prop. 8 case is Hollingsworth vs. Perry, 12-144.
Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com
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