Gay marriage advocates admit the dream team's legal arguments failed at the 9th Circuit--because the goal is to try to keep this case out of the Supreme Court where legal advocates think it will lose, according to the New York Times:
"...The majority did not accept the broadest argument pressed by Theodore B. Olson and David Boies, the celebrity legal team challenging Proposition 8, the voter initiative that overturned a California Supreme Court decision recognizing a right to same-sex marriage. Mr. Olson and Mr. Boies had urged the appeals court to find that the federal Constitution guarantees same-sex couples the right to marry — a rationale that would apply in all 50 states.
Judge Stephen Reinhardt, who may be the most liberal member of the famously liberal United States Court of Appeals for the Ninth Circuit, refused to bite. He opted instead for a local solution. California’s voters, he said, had no legitimate reason to use “their initiative power to target a minority group and withdraw a right that it possessed.” Doing that, he said, violated the federal Constitution’s equal protection clause. The broader question could wait.
Many gay rights advocates breathed a sigh of relief. They had long been wary of the Proposition 8 suit, preferring a state-by-state litigation and lobbying strategy over betting the farm on a case that was likely to end up in the United States Supreme Court. Some said they hoped the justices would now decline to hear an idiosyncratic case affecting a single state."