With the Ninth Circuit's denial of a rehearing petition on Proposition 8, and the First Circuit's decision against the Defense of Marriage Act, the issue of gay marriage is headed to the Supreme Court. I'll be surprised if the Justices don't take it up.
The two circuits have left the law in worse confusion than before. The First Circuit opinion is a horrible jumble, as John Yoo pointed out here recently. Having read the decision a couple times, I think the court struck down DOMA on Equal Protection grounds, but it's hard to tell because the court says that the law fails to satisfy a "heightened" level of judicial scrutiny, even though it doesn't, strictly speaking, violate Equal Protection. Similarly, when it came to the 10th Amendment, the court held that DOMA didn't exactly violate federalism, but acknowledged that defining marriage is a traditional role of states. The court did give a nod to federalism, concluding that each state remains free to define marriage as it sees fit.
But each state will not be free to define marriage under the 9th Circuit's decision. According to the 9th Circuit, the only conceivable motivation for a state to define marriage as one-man-and-0ne-woman is hatred of gays, meaning that any state law upholding traditional marriage would be struck down under even the most lenient standard of review.
So what is it to be: the quasi-federalism and quasi-equal protection of the First Circuit, or the anti-democratic fervor of the Ninth? Let's hope the Supreme Court answers with a resounding "neither." And then let's hope they dust off the 10th Amendment, which would be (in my opinion), good news for Prop 8, bad news for DOMA.