Bruce Hausknecht, judicial analyst for CitizenLink, explains why the legal case for gay marriage is, contrary to what we often hear, on very shaky ground, and why Olson and Boies know it:

Last week, the proponents of Prop 8 asked for an “en banc” re-hearing of the decision rendered by a three-judge 9th Circuit panel last month, authored by the ultra-liberal Judge Stephen Reinhardt. In a response filed this week, the lawyers for the homosexual couples who brought the case have asked the 9th Circuit to deny the request for a rehearing.

The brief submitted by pro-gay marriage attorneys Ted Olson and David Boies for the most part does what you’d expect: It argues that a re-hearing is unnecessary because the decision rendered by the three-judge panel (which upheld the August 2012 trial court decision striking down Prop 8 ) was correct.

But the part of the brief I find remarkable begins on page 13, in the section labeled: III. REHEARING MAY REQUIRE THE COURT TO REACH ALTERNATIVE GROUNDS FOR AFFIRMANCE ADDRESSED IN THE DISTRICT COURT OPINION. In that section, Olson and Boies warn the 9th Circuit that should it agree to the re-hearing, it may have to look at and address all of the other issues that were raised by Olson and Boies in the case from the beginning, but which the three-judge panel ended up not addressing. Since the two super-lawyers have been arguing those issues since the case began, it seems odd that they would now warn the entire court that possibly having to address them would be a bad thing.

Of course, there’s strategy in all this. Though I’m not privy to the thought processes of Olson and Boies, I assume they’re sending a message to the other liberal judges on the 9th Circuit – to stand down. Every judge on the 9th Circuit is aware that any Reinhardt opinion is fodder for a Supreme Court reversal. There likely are several other sympathetic liberals on the larger court willing to grant a re-hearing just to write a new opinion – without Reinhardt’s name on it. Even though that would make it less radioactive to the Supreme Court, I believe Olson and Boies don’t want the case to end up there any more...

... For those or perhaps other reasons, it would seem that the legal strategy from Olson and Boies has become a lot more cautious in the Prop 8 case.