The Ninth Circuit Court of Appeals has done what it normally does...legislate from the bench. The activists on the California court have struck down the democratically-enacted ban on gay marriage in that state, thereby paving the way for a showdown in the Supreme Court. Frankly, I'm not sure activists from the LGBT community should be too happy about that eventuality.
There are four probable votes against legalizing same sex unions, from John Roberts, Samuel Alito, Clarence Thomas and, of course, Antonin Scalia who was none too happy when the court struck down laws that criminalized sodomy in an opinion written by Anthony Kennedy nine years ago.
And the composition of the court is somewhat different from what it was in 2003, with a liberal lion, Justice John Paul Stevens, having retired, and the possibility that another liberal lion will be retiring in the not-too-distant future (Ruth Bader Ginsburg is looking very frail these days.) That leaves Stephen Breyer, Elana Kagan and Sonia Sotomayor as the left-leaning anchor of the court, and only Breyer is a reliable vote for social engineering. Sotomayor has proven to be surprisingly moderate during her tenure (to my pleasant surprise) and Kagan-who sometimes concurs with Alito-is also more balanced than expected.
And what about Kennedy, champion of legalized sodomy? Well, he assured us in his opinion in Lawrence v. Texas that "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." So he was very careful to distance himself from any pronouncement about legalizing gay marriage. And, um, he's a practicing Catholic. You do the math.