Only Scalia, Alito seemed to back Prop. 8, professor says

An artist's rendering shows attorney Theodore Olsen standing as he presents his arguments for striking down Proposition 8 to the court.
(Dana Verkouteren / Associated Press)

One leading law professor said he saw little support on the U.S. Supreme Court for keeping Proposition 8, California’s ban on gay marriage.

Erwin Chemerinsky, dean of the law school at UC Irvine and a constitutional law professor, said a reading of the transcript showed that several justices were particularly concerned about standing, especially Chief Justice John Roberts and Justice Ruth Bader Ginsburg.

If the court dismisses the appeal on standing, the ruling by a federal district judge would probably stand.

FULL COVERAGE: Battle over gay marriage

“There might be a majority to leave the district judge’s opinion in place,” Chemerinsky said. “On the other hand, it is also possible the court could reach the merits. Only two justices—Samuel Alito and Antonin Scalia—seemed clearly supportive of Proposition 8.”

Gay marriage foes expressed confidence that the U.S. Supreme Court could uphold the state’s ban on same-sex unions after hearing arguments Tuesday.


“I think we are going to win this case,” Andy Pugno, lawyer for Proposition 8 campaign, said. “We definitely represented the winning case today and the justices asked good thoughtful questions and we were able to say everything that we wanted to get in front of the court today.”

Pugno, counsel for, said he was unimpressed by the arguments in favor of lifting the voter-approved ban on same-sex marriages in California.

CHEAT SHEET: Your guide to Prop. 8 and DOMA

He said the comments by Roberts and Kennedy, both considered possible swing votes, “could be read either way.”

“I would be surprised if there were five votes to uphold Proposition 8,” Chemerinsky said.

“I wouldn’t be surprised to see it dismissed on standing.”

He said it was impossible to tell on what basis the court might strike down Proposition 8 if it was so inclined.

“I don’t think you can tell from the transcript which way Kennedy was leaning, and I think he did that intentionally,” Chemerinsky said. “He knows he is the pivotal vote, and he asked hard questions of both sides.”

CHEAT SHEET: Your guide to Prop. 8 and DOMA

The Times’ David G. Savage reported that the justices sounded closely split, but Justice Anthony M. Kennedy suggested that the court should strike down the California ban without ruling broadly on the issue of same-sex marriage.

Twice Kennedy questioned why the court had even voted to hear the California case. “I wonder if this case was properly granted,” he said at one point.

His comments suggested that the court’s four most conservative justices voted to hear the California case. Had the justices turned down the appeal, as Kennedy suggested, Proposition 8 would have been struck down as ruled by by the 9th Circuit Court.


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