.... In my view, the court got it right, as a matter of law and as a matter of constitutional politics.
Start with the role of federal courts of appeals in our rule of law system: their role is a limited one, a point these pro-gay commentators have neglected. Such courts (1) are supposed to address the particular factual context presented by the parties, (2) must follow the binding precedent of their own circuit and of the Supreme Court, and (3) ought usually to choose narrow rather than broad grounds for decision. Judge Reinhardt’s Perry opinion is exemplary along all three dimensions.
I agree. The euphoria that led everyone to reach for the big hit covers up the very real danger of a smack down from the SCOTUS if the decision is as broad as Vaughn Walker's. Besides, as we see just this week, the momentum is underway. As Prof Eskridge cautions,
Courts can help put an issue on the public law agenda, and they can channel discourse into productive directions. They can also help create conditions for falsification of stereotypes and prejudice-driven arguments, such as the canard that gay marriage will undermine “traditional” marriage. But courts cannot create a national consensus on as issue about which “We the People” are not at rest. And nationally, the people are not at rest.