Gay marriage supporters fear Supreme Court’s ruling was an omen


The U.S. Supreme Court cast its first vote last week on the legal challenge to California’s voter initiative barring same-sex marriage, and some experts said it was a bad omen for those who hope gays and lesbians will win a constitutional right to such unions.

The 5-4 decision, with conservatives in the majority, intervened in the San Francisco district court trial on behalf of the defenders of Proposition 8.

The high court rebuked U.S. District Chief Judge Vaughn Walker for seeking to give the public a chance to view the proceedings on the Internet. In its opinion, the majority saw the dispute through the same lens as the opponents of gay marriage and decided that they -- not homosexuals -- faced a hostile public climate of harassment and intimidation.


The lawyers challenging the California measure hope to build a convincing case that gays and lesbians, like other minorities, suffer from prejudice and bigotry that requires a remedy from the courts.

But if the lawyers’ ultimate audience was the Supreme Court, the justices seemed to be getting a different message. In their opinion, they worried that opponents of gay marriage and their paid witnesses would face “harassment as a result of public disclosure of their support” for the ban. They concluded that the Prop. 8 defenders “have shown that irreparable harm will likely result” if video coverage of the proceedings were made public.

The U.S. district court trial is just the first round in the legal fight over California’s ban on gay marriage. After Walker rules on Proposition 8, the losing side will appeal to the U.S. 9th Circuit Court of Appeals in San Francisco. From there, the case is sure to go to the Supreme Court.

Attorney Charles Cooper, a Reagan-era veteran who is well known to the justices, filed an emergency appeal last weekend urging them to block all video coverage of the trial -- even if it were limited to a few courthouses in California. By Monday morning, the high court had granted the appeal and ordered a halt to any video coverage outside the courthouse.

Legal experts on the left and right gleaned three insights from the high court intervention:

First, the justices are following this case closely. They typically rule on appeals after cases are decided. It is rare for them to intervene in a pending trial.

Second, the court’s conservatives do not trust Walker to set fair rules for proceedings. Their opinion described how he had given shifting explanations of his plans. This suggests Walker’s ruling on Proposition 8 may be viewed with some skepticism.

And third, the majority has a distinct sympathy for the foes of same-sex marriage. The justices cited a series of newspaper stories reporting on the threats and harassment faced by those who have publicly opposed gay unions.

“The ideological split was stunning,” said Erwin Chemerinsky, a liberal law professor and dean of the UC Irvine Law School. “It made me think of Bush vs. Gore” -- when, after the 2000 presidential election, the Supreme Court issued a 5-4 emergency order to halt the recount of Florida’s paper ballots and three days later ended the recount.

Last week’s intervention in the San Francisco case “suggests the majority has a very strong sympathy for Prop. 8’s supporters,” USC law professor David Cruz added.

M. Edward Whelan, a conservative former clerk to Justice Antonin Scalia, called the high court decision “a stinging rebuke” of Walker that “strongly signals that at least five justices have serious questions about his impartiality and judgment in this matter.”

Chemerinsky, Cruz and Whelan all cautioned against predicting the outcome in the high court, but said the justices’ ruling was an early sign that the advocates of a constitutional right to same-sex marriage may face an uphill fight.

Some gay-rights advocates, wary of bringing a court challenge too soon, were not enthused when Theodore Olson and David Boies (who fought on opposite sides in the Bush vs. Gore case) announced they would fight California’s ban on gay marriage. Both said they were confident the high court would ultimately agree that the right to marry was a fundamental one and that there was no reasonable justification for denying that right to gay and lesbian Americans.

Olson and Boies discounted the significance of last week’s intervention by the high court. “I’m quite sure it doesn’t have anything to do with the merits of our case,” Olson said.

Boies said the court’s involvement so far should not be seen as foreshadowing its eventual decision. This was “a split based on cameras in the court,” he said.

Olson noted that Justice Anthony M. Kennedy twice has written strong opinions that rejected discrimination against gays and lesbians. “I won’t predict the outcome, but Justice Kennedy will take this issue very seriously,” he said.

However, other legal experts question the timing of the California lawsuit. Cruz was one of them. “I was concerned this was being pushed too early in the struggle for marriage equality,” he said. He noted that in the 1950s, the Supreme Court refused to strike down laws against interracial marriage, even though it had declared school segregation to be unconstitutional. The justices waited until 1967, when more than two-thirds of the states allowed blacks and whites to marry.

Several California law professors who said they supported gay rights worried about a 9th Circuit ruling that broadly endorsed same-sex marriage.

“The worst-case scenario is a 9th Circuit ruling in favor of the plaintiffs. That will force the Supreme Court’s hand, and it will lead to a bad precedent,” said Vikram Amar, a law professor at UC Davis and a former court clerk. “I don’t see the five justices to affirm that. There may not be two or three even.”

Currently, he said, gay marriage is the law in Iowa and in parts of New England, and “I don’t see Anthony Kennedy viewing that as the national norm.”

Times staff writer Maura Dolan in San Francisco contributed to this report.