It wasn't supposed to work.

Backed by a Hollywood-style gay rights group and two of the best lawyers in the country, the legal challenge to California's same-sex marriage ban -- filed in the spring of 2009 -- at first was strongly opposed by the nation's largest gay rights organizations.

The reason was simple math. In their view, not enough justices on a conservative U.S. Supreme Court were ready to back same-sex marriage rights. And that would risk a ruling that could set the movement back for years.

But on Wednesday, the legal challenge to Proposition 8 did work, even though it was far from clear there are indeed enough Supreme Court justices ready to declare a constitutional right to same-sex marriage.

And on Friday, after a 10-word ruling from the Ninth Circuit Court of Appeals cleared the way, the weddings began again for the first time since 2008, when voters approved Proposition 8 and blocked the altar for gay and lesbian couples.

"It did work beautifully," said Shannon Minter, legal director of the National Center for Lesbian Rights and one of many gay rights leaders who were skeptical of pushing the Proposition 8 case to the Supreme Court.

"It gave us a chance to present these arguments to the court, sort of a trial run, which I think is going to be very helpful whenever we're back in front of them with this issue."


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The Supreme Court's 5-4 decision on Proposition 8 certainly did not settle the gay marriage issue for the country, with dozens of states still able to outlaw same-sex nuptials. The justices avoided tackling whether a state ban on gay marriage is constitutional, instead finding that Proposition 8 backers never had the legal right to defend California's law.

California now becomes the 13th state to legalize gay nuptials.

Legal experts say the Proposition 8 lawsuit, even if it didn't persuade the Supreme Court to issue a sweeping ruling in favor of same-sex marriage rights, did what it set out to do -- legalize gay marriage in California.

David Boies, who crafted the lawsuit with former Republican U.S. Solicitor General Theodore Olson, said Thursday he was satisfied the Supreme Court resolved the case by finding Proposition 8 backers had no right, or "standing," to defend the law in place of state officials. That, he said, brings same-sex marriage to the nation's largest state.

Ready or not, there were enough Supreme Court justices to make that happen, despite all the doubts of four years ago. And it was an unusual, even oddball, coalition of the court's liberals and conservatives to do so: Roberts and fellow conservative Antonin Scalia, joined by liberal Justices Elena Kagan, Stephen Breyer and Ruth Bader Ginsburg.

"At the end of the day, there was no setback, only advances," said Marc Spindelman, an Ohio State University law professor.

Added Julie Nice, a University of San Francisco law professor: "Honestly, I think the fact we get this major result without any ruling on the merits, it still worked," said Julie Nice, a University of San Francisco law professor. "I think their gamble paid off."

The Supreme Court also on Wednesday struck down the 1996 federal Defense of Marriage Act, in that case taking a broader approach to finding the denial of benefits to same-sex couples violates federal equal protection rights.

Many legal experts say that decision has planted the seeds of the next challenge to a state's right to ban same-sex marriage. In fact, Scalia warned of that possibility in his dissent.

Retired Chief U.S. District Judge Vaughn Walker, who wrote the 2010 ruling invalidating Proposition 8, said this week he found neither of the Supreme Court rulings "a surprise."

Armed with Wednesday's DOMA ruling and the Proposition 8 outcome, the next challenge to a state ban may not carry the same worry and skepticism Olson and Boies confronted four years ago.

"If you look at the way the country has changed, there is a good chance that three, four, five years from now the country will have changed even more," Boies said. "So people will not have that kind skepticism about it that we faced,"

Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz