On Friday, the Ninth Circuit lifted its injunction against same-sex marriages, which had been put in place pending a Supreme Court ruling on the legal challenge to Proposition 8. Last week, the Supreme Court held that it did not have jurisdiction to decide the case on the merits, as the supporters of the measure, which banned same-sex marriage in California, did not have standing to appeal a District Court ruling that the law was unconstitutional. The Supreme Court's decision vacated the Ninth Circuit's ruling, meaning that the only barrier to same-sex marriage in the state was the injunction.

Since the Ninth Circuit's decision, same-sex couples have already begun marrying in the state. But supporters of Proposition 8 argued that the injunction could not be lifted until the Supreme Court decision was finalized, which occurs 25 days after a decision is handed down.

Kennedy had dissented from the majority opinion on the ruling, which was written by Chief Justice John Roberts.

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The Wendy Davis filibuster in Texas? The Supreme Court decision on DOMA? The immigration bill passing in the Senate? All of them were achievements by ordinary citizens who got involved and affected elections. These things didn’t just happen. They were the real outcomes of citizens voting, in contests that could have gone the other way just as easily.

The United States is an enormous nation, with an enormously complex political system – one that puts no one in charge, but instead relies on separated institutions sharing powers, federalism, and all sorts of other complications. As a result, it’s very difficult, most of the time, to see obvious links between a specific election and a specific outcome. Yes, every once in a while there’s an obvious consequence: no 2008 Democratic landslide, no Affordable Care Act. But frustration is far more common in the Madisonian system.

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The host of "The 700 Club" was speaking to Jay Sekulow, an attorney for the conservative American Center for Law and Justice. “I have no idea,” Sekulow replied. “I think what Justice Kennedy did, if you look at a series of cases that he’s been involved in, he’s taken the view that sexual orientation is a special class.”

Robertson later continued that the decision to overturn DOMA could pave the way for a Sodom and Gomorrah-type situation. “Look what happened to Sodom. After a while, there wasn’t any other way, and God did something pretty drastic.”

Watch, via MediaMatters:

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Don’t misunderstand me: This was a great day. Same-sex marriage came to California, and DOMA, a stupid, nasty law, is history. The Court acted well. But the judges’ opinions leaven the heroic tale with some comic relief.

DOMA declares, in pertinent part, that the word "marriage," wherever it appears in the U.S. Code, "means only a legal union between one man and one woman as husband and wife." The rule applies indiscriminately across all federal laws, producing some weird results. Federal ethics rules bar officials from participating in matters in which their spouses have a financial interest — but not if they're same-sex spouses. It is a federal crime to assault, kidnap or kill a member of the immediate family of a federal official in order to influence or retaliate against that official — but not if you do that to a same-sex spouse. Ditto Social Security, federal pensions, taxation of inheritances (which was the issue in today's case), and over a thousand other provisions.

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In response -- with a tip of the hat to New York magazine's "approval matrix" -- we presented our gay marriage "courage-meter." On the x-axis is timing -- who was ahead of the curve, and who came to the party late. The y-axis represents who showed guts and risked political capital for their support.

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“If Bill Clinton was ‘the first black president,’ Anthony Kennedy has now firmly secured his place in history as ‘the first gay justice,'" said former Kennedy clerk Michael Dorf, who now teaches law at Cornell.

Kennedy has often confounded liberals and conservatives alike with his unpredictable decision-making. "On most cases of great moment, the intellectual battlefield of the Supreme Court has shrunk to the space between this one man's ears," Time magazine's Massimo Calabresi and David Von Drehle wrote in their 2010 profile of the justice.

But on gay rights, Kennedy is atypically consistent. "As the author of Romer v. Evans, Lawrence v. Texas and now United States v. Windsor, Justice Kennedy makes clear that he not only accepts, but welcomes the task of writing majestic opinions affirming the dignity of gay persons and couples," Dorf added.

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The case, called Fisher v. University of Texas at Austin, involved a white woman who sued the school after it rejected her in 2008, arguing that the school’s affirmative action policy violated the Equal Protection Clause of the 14th Amendment. In a 7-1 decision, the Court found that in this case, the 5th Circuit Court of Appeals improperly applied the "strict scrutiny" test, and gave undo deference to the "good faith" of the University of Texas when it ruled in the school's favor.

Strict scrutiny is the highest possible standard that the courts apply when reviewing laws that either discriminate on the basis of race, gender or some other characteristic, or directly interfere with a constitutional right. In order to determine whether a law stands up to strict scrutiny, the court will ask whether the government has a compelling interest for creating the policy, and whether the law is “narrowly tailored” to that particular interest. Here, the Court found that the 5th Circuit had not adequately applied that test.

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The case, Fisher V. University of Texas at Austin, was argued in October, and involved a white woman suing the university for rejecting her in 2008, arguing that the school's policy of affirmative action violated the Equal Protection Clause of the Fourteenth Amendment.

In its ruling, the Supreme Court found that the Fifth Circuit Court of Appeals "did not hold the University to the demanding burden of strict scrutiny" when it ruled in favor of the school, and vacated the lower court's ruling.

Strict scrutiny is the highest standard that courts apply when reviewing a law that either discriminates on the basis of some characteristic (race, gender, etc.), or (as in cases involving abortion laws) interferes with a constitutional right. In these cases, the court typically applies two tests to determine whether or not the law will survive: First, whether the government has a compelling interest for creating a policy (in affirmative action cases this is usually diversity in the classroom), and second, whether the law is "narrowly tailored" to that particular interest (in this case, that would mean there were no other race neutral policies that could accomplish the same objective).

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From the New York Times:

Justice Anthony M. Kennedy, widely considered the swing vote on the divided court, joined the four liberals in posing skeptical questions to a lawyer defending the law, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs.

“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. “It’s not really uniformity,” he said.

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To appreciate how that single radical jurisprudential theory of Too Big to Fail connects issues as disparate as financial regulation and same-sex marriage, remember that the last few weeks has seen America's normally opaque government for the first time articulate that theory in public. As you may recall, the attorney general, the assistant attorney general and President Obama's nominee to head the Securities and Exchange have all admitted that prosecutors take into account external factors (macroeconomic effects, shareholder losses, etc.) when deciding whether to charge lawbreaking financial institutions with serious crimes.

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“I just wonder if the case was properly granted,” he said, referring to the Court's decision to take up the case. Kennedy noted that the case takes the Court into “uncharted waters," and twice asked if the justices should decline to rule.

For Supreme Court watchers, Kennedy is the closest thing to a bellwether for how the case will be decided, inasmuch as the Court's decision can be predicted at all. Lyle Denniston of SCOTUSBlog lays out some of the potential implications of a decision by the Court not to rule on the merits of the case:

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Here's what's important to know about the right's plan for Roe: It will be slow, and it will be indirect -- to avoid a backlash -- but the inexorable goal is to overturn it and ban abortion wherever possible. With an eye toward the court's oldest member, women's rights pioneer Ruth Bader Ginsburg, antiabortion activists would be counting on a President Romney to appoint one or more justices who would upset the fragile 5-4 balance that currently maintains the federal right to an abortion. In the meantime, they've been working hard to lay the groundwork to get a case before the Court that would allow justices to revisit, and possibly overturn, Roe.

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Who exactly is John Roberts, and why did he get to decide what sort of healthcare system the world’s richest and most powerful nation should have? Roberts is no more and no less than a politically well-connected Washington, D.C., lawyer. After graduating from Harvard Law School he had exactly the kind of career that such people have: He rotated between prestigious Republican-controlled government positions and a lucrative K Street (technically just south of K Street) private law practice, until he had the good luck to become a relatively young and very telegenic federal judge, just two years before George W. Bush would find himself in need of a new chief justice.

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The two Democratic appointees to the 9th Circuit Court of Appeals ruled Tuesday that the California prohibition of gay marriage -- the infamous Proposition 8 -- violated the U.S. Constitution. Following the cautious counsel of a group of friends of the court, seasoned activists not part of the new litigation group that brought the suit, longtime liberal giant Judge Stephen Reinhardt passed up the opportunity to produce the gay Brown v. Board of Education.

Instead Reinhardt ruled on the narrowest possible grounds that Proposition 8 was unconstitutional, because it took away gays’ preexisting right to marry, extended to them a few months before by the California Supreme Court. No other state, not even the other states in the territory covered by the 9th Circuit, is affected by the ruling.

The opinion is an explicit appeal to Justice Kennedy, who wrote the original pro-gay Supreme Court opinion in Romer v. Evans, which involved a law that took away gay rights. It practically parrots the language of his opinion verbatim, offering him the opportunity to affirm their ruling and still duck the question of whether there is an overall constitutional right to same-sex marriage.

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