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When Prop 8 Heads to Supreme Court, Will It Vote to Uphold Discrimination? America Thinks So

According to the standing results of our unscientific poll, 87 percent of you think the plaintiffs will win in the federal Perry trial, with Judge Vaughn Walker declaring Prop 8 unconstitutional. Great! But from there, everyone expects the case to be appealed to the U.S. Supreme Court. And if the justices take the case, are you still so hopeful about your chances?

Americans at large are not, according to a new poll from Angus Reid Public Opinion, the Canadian-based (but global) survey firm. If Perry heads to Washington, 52 percent of respondents believe the Supreme Court will vote to define marriage as between a man and a woman, declaring Prop 8 and the Defense of Marriage Act as perfectly constitutional. Just 28 percent said the Supremes will declare marriage as between any two persons. The breakdown by gender was roughly equivalent.

Moreover, of that same set of respondents, 58 percent said they want the high court to rule that way. Jeez, it’s like none of you have any faith in Justice Anthony Kennedy.

Worth nothing: The poll, of 1,000 Americans, took place over Jan. 12-13, just as Perry was getting underway. (Full results here; PDF.)

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By:           editor editor
On:           Jan 31, 2010
Tagged: , , , , ,

  • 26 Comments
    • Andrew
      Andrew

      Through my own research, I’ve only counted three solid votes against marriage equality. Namely, Roberts, Scalia and Thomas. I’m positive on the last two, and Roberts hasn’t spoken much about Gay rights — but he leans Conservative and I can’t imagine him going for Gay marriage.

      I would have put Alito in the same pool, however he was advocating for an end to sodomy laws and even anti-discrimination laws in 1977 which makes me think while he leans against gay marriage, there may be room for more than just blind homophobia. Sotomayor and Ginsburg are quiet on Gay issues, Sotomayor for obvious reasons and Ginsburg…well…she just hasn’t spoken on it much. I think we have Kennedy as a firm vote in favor of marriage equality and Stevens as a strong lean towards us.

      SO.

      Yes (To Gay Marriage)
      John Paul Stevens
      Anthony Kennedy

      Unsure
      Ruth Bader Ginsburg
      Stephen Breyer
      Sonia Sotomayor
      Samuel Alito

      No (To Gay Marriage)
      John G. Roberts
      Antonin Scalia
      Clarence Thomas

      Jan 31, 2010 at 2:03 pm · @ReplyReply to this comment ·
    • bozemanmontana
      bozemanmontana

      good breakdown, Andrew. I agree with you across the board.

      Jan 31, 2010 at 3:23 pm · @ReplyReply to this comment ·
    • RS
      RS

      Interesting.

      Kennedy of course wrote the two most important pro-gay Supreme Court rulings, Romer v. Evans (striking down Colorado’s initiative banning any sexual orientation workplace/housing protections at the state or local level) and Lawrence v. Texas, striking down Texas’ (and other other states’) sodomy laws. But he was very careful to not declare that sexual orientation is a protected class. Romer failed the lowest scrutiny, the “rational basis” test, since the law was motivated solely by animus or prejudice and there was no other rational explanation for it. And Lawrence failed because regulating the behavior violated the right to privacy. (Interestingly enough, Sandra Day O’Connor’s concurrence was in some ways stronger because she argued that gays were treated differently under the law, and therefore it violated the Equal Protection clause of the 14th Amendment … and important step towards declaring sexual orientation a suspect class requiring the highest levels of judicial protections.)

      So while Kennedy has ruled in our favor in the past, it’s hard to tell whether or not he would go to the next step of declaring us a suspect class. And if he doesn’t, I believe the SCOTUS could come up with some other cockamamie argument for why it’s rationale for some other reasons. I would personally consider him to be in the “Unsure” camp.

      Alito has seemed pretty rabidly conservative on other ideological issues. I don’t know the history of him advocating for repealing sodomy laws — was that a political argument or a judicial one? Was he saying that legislatures should repeal them, or that they aren’t Constitutional? Still, I’m somewhat heartened to hear your thoughts on this.

      Ginsberg, Breyer, and Sotomoyer … while it’s unclear, I’d be more included to put them (rather than Kennedy) in the “Yes” camp. Just my gut instinct but I don’t have a lot to back that up with.

      I unquestionably accept your thoughts on Roberts and Scalia. They are ideologues, and I just can’t imagine them accepting any evidence whatsoever suggesting sexual orientation should be a suspect class. I would almost unhesitatingly put Thomas here, too. The one thing that gives me pause is that he is in an interracial marriage and lives in Virginia, the state that triggered the lawsuit that ultimately was decided, unanimously, in Loving v. Virginia that state anti-miscegenation laws were unconstitutional. It seems stunning that he could not see the parallels. But given his rapidly conservative ideology and especially his anti-gay rant in his concurrent decision for the Citizens United case a few weeks ago, I would be completely shocked if he isn’t in the “No” camp at the end of the day.

      Still, how amazing would it be to get a 7-2 decision in our favor? I’m not holding my breath — I think the odds are against us to even get a 5-4 decision in our favor, but we shall see.

      I’m not a lawyer or even a legal scholar, just an amateur “enthusiast,” I guess, so I look forward to hearing everyone’s thoughts and insights into how this might go.

      Jan 31, 2010 at 4:06 pm · @ReplyReply to this comment ·
    • RS
      RS

      Apologies for my typos (for example, I meant “rabidly conservative” not “rapidly conservative”). Guess I was typing too rabidly. ;-)

      Jan 31, 2010 at 4:08 pm · @ReplyReply to this comment ·
    • Eric
      Eric

      After Citizens United v. Federal Election Commission who the hell knows what the U.S. Supreme Court will do (or what the hell they’re smoking)?

      Jan 31, 2010 at 4:21 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      It’s time to read, “The Pelican Brief” again.

      Jan 31, 2010 at 5:03 pm · @ReplyReply to this comment ·
    • John K.
      John K.

      Stevens will be gone after this term, so scratch that “YES” vote. Ginsburg’s health is questionable at best, so who knows how much longer she will be around, so scratch that possible “YES”. Scalia and Thomas are certain “NO”s.

      Kennedy specifically wrote in the Lawrence case that it did not necessarily mean gays and lesbians were owed any relationship recognition. To me, that leans him “NO,” I would say substantially. It’s possible (and I hope) he just put that in the opinion to secure the votes of other justices, but I don’t know. But even in that case, that would mean he needed to do that as recently as 2003 to get them on board.

      I assume Breyer would be with us, and probably Sotomayor as well, but we don’t really know about her.

      And I thought it was Roberts who worked against those anti-sodomy laws, but maybe I got him and Alito confused.

      Bottom line, I don’t think we have a single solid “YES” vote by the time the case reaches the Court. Breyer and Sotomayor come closest, but we don’t know for sure (as with, say, Stevens). I think we will start with at least 3-0 (Scalia, Thomas, and Roberts), maybe 4-0 against us (add Alito), and we will be left with needing 5 of 6 or 5 of 5 remaining votes from a pool of Breyer, Sotomayor, Kennedy, and two unknown future appointees, (maybe Alito).

      I’m not optimistic. I do think we kicked ass in the trial and obviously deserve to win, and I think we probably will in the trial Court. Beyond that, I think the best we can hope for is a loss in the 9th Circuit so the Supreme Court doesn’t get involved.

      Jan 31, 2010 at 9:13 pm · @ReplyReply to this comment ·
    • ChrisM
      ChrisM

      Besides the fact that the Supreme Court’s whole purpose is to take some power away from the malicious majority, this poll was done at the beginning of the trial, and most people who said the Supreme Court would not find prop 8 unconstitutional wanted that to be the case. I’m not entirely confident about the SC appeal, but this poll isn’t going to make me any less so.

      Jan 31, 2010 at 9:13 pm · @ReplyReply to this comment ·
    • TommyOC
      TommyOC

      If the Supreme Court upholds Prop 8 (and others like it), it will be very interesting to see what the opinion is to do so. They essentially have to come right out and say that gay relationships aren’t that important and that the federal government only has an interest in promoting heterosexual marriages and no others.

      That’s a hard case to make and not sound like a near-sighted bigot. But it’s happened before. Google “Dred Scott.”

      Jan 31, 2010 at 9:20 pm · @ReplyReply to this comment ·
    • tjr101
      tjr101

      It will be a 5-4 decision as always with Kennedy siding with the conservatives. Pass votes on sodomy can’t be taken into consideration because it’s quite a leap to redefine the definition of marriage. I suspect their decision would be a narrow one upholding Prop 8 and DOMA.

      YES..

      Stevens
      Ginsburg
      Sotomayor (she lived in the village for christ sake)
      Breyer

      NO..

      Scalia (ideologue)
      Roberts(ideologue)
      Thomas (ideologue)
      Alito (ideologue)
      Kennedy (the decider)

      Jan 31, 2010 at 9:27 pm · @ReplyReply to this comment ·
    • TommyOC
      TommyOC

      @John K.: “I think the best we can hope for is a loss in the 9th Circuit so the Supreme Court doesn’t get involved.”

      The best we can hope for is to WIN IT ALL. Sooner or later, John, this case WILL have to be heard by SCOTUS… or such a radical shift happens in EVERY STATE of this country that we get majorities to overturn the constitutional amendments they put in place. Good luck with both, since the Plaintiffs people eloquently asserted that legal discrimination encourages the masses to discriminate freely. The laws on the books are a self-perpetuating machine now. Only the court can effectively stop them all.

      And you make too much out of Kennedy’s decision. The Court must be clear and exacting in their decisions or people will try to apply their ruling to cases they didn’t intend it to affect. This lessens their need to clarify the ruling down the road. Kennedy saying the ruling had nothing to do with validating relationships was a clear indicator that he was ruling on privacy matters (as the case was concerning) and not on gayness itself.

      In other words, his letter is no more “no” then it is “yes.”

      Jan 31, 2010 at 9:28 pm · @ReplyReply to this comment ·
    • Cassandra
      Cassandra

      “The laws on the books are a self-perpetuating machine now. Only the court can effectively stop them all.”

      Which is why the forces of bigotry may not take this particular case any further if/when they lose in California.

      If they go to SCOTUS, win or lose, Maggie and company are out of work. But if they don’t go to SCOTUS, they can use their court loss in CA to rally attempts at state and federal constitutional bans – ensuring years of living off the donations of conservative homophobes.

      Feb 1, 2010 at 12:04 am · @ReplyReply to this comment ·
    • AlwaysGay
      AlwaysGay

      @tjr101: I think you are right. Scalia, Thomas, Alito and Roberts are not going to vote in favor of anything gay no matter what. So we already have four votes against gay couples getting OUR marriage rights. Kennedy has moved to the right this past year and is unlikely to support gay couples’ right to marriage.

      Feb 1, 2010 at 12:09 am · @ReplyReply to this comment ·
    • B
      B

      No. 10 · tjr101 wrote, “It will be a 5-4 decision as always with Kennedy siding with the conservatives. Pass votes on sodomy can’t be taken into consideration because it’s quite a leap to redefine the definition of marriage.”

      While right now it is just a guess, there is another possible outcome – that they will decide that either or both of the following are true:

      1. Proposition Eight was motivated by animus.
      2. Proposition Eight puts gays at a disadvantage.

      The argument for 1 was nicely provided by William Tam’s testimony. The argument for 2 might include the obvious fact that the state constitution was changed in a way that only affects gay couples.

      Then they can overturn Proposition Eight without setting a precedent regarding DOMA or restrictions in every other state, merely citing Romer v. Evans (and Kennedy wrote the decision on that). That may work because Romer v. Evans talks about legislation passed due to animus that puts a group at a disadvantage.

      Feb 1, 2010 at 12:21 am · @ReplyReply to this comment ·
    • LoveMoby
      LoveMoby

      @John K.:

      There is another alternative. We win at the 9th Circuit and the Supreme Court doesnt take the case. I wonder what happens then?

      Feb 1, 2010 at 12:58 am · @ReplyReply to this comment ·
    • Larry
      Larry

      I’m really on the fence about this one. Notwithstanding my inability to predict the future, I’m caught between thinking we could really win this because we proved our case and because we have such a huge mountain of evidence and witnesses compared with the other side, on the one hand, and thinking this will be our equivalent to Dredd Scott or Plessy v. Ferguson and we’ll not only not see gay marriage for years or decades but see an all-out attack on gay rights around the country because we’ll “offically” no longer be a suspect class.

      I really really hope we win, I really do. But there’s a little voice inside of me saying “Get the fuck out of this country ASAP.”

      Feb 1, 2010 at 2:07 am · @ReplyReply to this comment ·
    • B
      B [Different person #1 using similar name]

      No. 15 · LoveMoby: “There is another alternative. We win at the 9th Circuit and the Supreme Court doesnt take the case. I wonder what happens then?”

      The court decision that was appealed to the Supreme Court is the one that applies. In cases where the decision goes through multiple courts, the last one in the chain is the one that counts.

      It’s a necessity – the Supreme Court cannot handle the number of cases that are sent to it, so the court has to pick and choose, and will generally try to pick the more interesting or important ones.

      Feb 1, 2010 at 2:25 am · @ReplyReply to this comment ·
    • Michael R
      Michael R

      I suspect Walker will side with the plaintiffs. He seems to be a wild card and most of what I’ve read about his decisions at the trial – including the decision to have a trial in the first place – seems like he’s leaning toward the plaintiffs.

      If that were the case, I believe that the best case scenario would be an affirmation on appeal to the Ninth Circuit, followed by a statewide proposition that repealed Prop 8 (or denial of cert as LoveMoby suggests). This would moot the issue and preclude Supreme Court reversal of favorable Ninth Circuit precedent on gay issues that might help win other legal battles within the Circuit.

      If Perry goes to the Supreme Court, I fear it would be a lose-lose situation. If Perry plaintiffs lose, this might deal a devastating blow to the gay rights movement by creating negative, binding legal authority in all courts in the country. If Perry plaintiffs win, I fear there would be the following federal “Prop 8″ scenario:

      A federal constitutional amendment would be proposed. Since more than 2/3 of the states have laws that prohibit gay marriage, it would not be difficult to have it passed by the states. California’s passage of Prop 8 proves that voters don’t understand the purpose of constitutional democracy. The religious right will swing moderates its way by appealing to “protecting children” and protecting the voice of the voters, as they did in both California and Maine. I’m particularly worried given the epic failure of the gay rights movements to cultivate political support and counteract religious propaganda throughout the country. Undoubtedly, any appeal of the amendment to the U.S. Supreme Court would go the way of Strauss.

      For those readers in California, please do not rely on courts to repeal Prop 8. Please do it yourselves, for your sake and for mine.

      Feb 1, 2010 at 2:34 am · @ReplyReply to this comment ·
    • JB
      JB

      @RS:
      And it’s Sotomayor, not Sotomoyer..

      Feb 1, 2010 at 4:00 am · @ReplyReply to this comment ·
    • WomanBeyondOz
      WomanBeyondOz

      This is an agonizing wait for me. I know first hand how important this bill really is, for more than just the GLBT community. I have been married for 20 years and have a beautiful 18 year old child, but my family was torn apart recently when my husband “came out” and told me he was gay, as a result my life has been turned upside down, the life I had planned will never come to fruition and I find myself in a situation I never dreamed possible. My husband says all he ever wanted was a family and he really believed that he could make this work, I know what he did was wrong, but I don’t blame him. I blame society for making it impossible for homosexual people to live out the same dreams heterosexuals have, of getting married, having kids and growing old together. The victim here is not just my husband but also myself and his child. And as a side-note my son is transgendered so I also have a vested interest in seeing him get married and be happy. So PLEASE California…DO THE RIGHT THING…do it to PRESERVE the family

      Feb 1, 2010 at 4:17 am · @ReplyReply to this comment ·
    • Brown Gay Al
      Brown Gay Al

      How is Roberts a no and Alito a yes?
      Roberts is more likely to vote yes on gay marriage than Alito.

      No — Alito, Scalia and Thomas.
      Yes — Stevens
      Lean Yes — Sotomayor, Ginsburg, Breyer
      Lean No — Kennedy, Roberts

      The most pivotal vote is Roberts and not Kennedy. If Roberts votes yes to a narrow ruling applicable only to CA like he did in the Voting Rights Act thats the best shot we have of getting any gay rights out of this case.

      Feb 1, 2010 at 10:59 am · @ReplyReply to this comment ·
    • Flex
      Flex

      I don’t give a damn. The facts are on our side. The SCOUTS will need to create a very good reason to validate proposition 8.

      Full steam ahead, and annihilate proposition 8! Let’s give the bible thumping lunatic corporations hell! They’ve made hundreds of millions of dollars on our backs.

      Fuck Them!

      Feb 1, 2010 at 3:46 pm · @ReplyReply to this comment ·
    • DR
      DR

      I think B (post 14) has it right, and that too many of you are stretching for a full-blown opinion on marriage equality.

      This was not a trial on whether or not gay marriage should be legal. This was a trial to determine whether or not the backers of Prop 8 were motivated by animus against the gay community, thereby invalidating the vote. That’s it.

      Is it possible we may get some guidance as to future rulings through this case? Of course we will. But legally speaking, this case will have a very narrow holding and will most likely be written in such a way that it will not apply to the other 39 jurisdictions which have amended their own state constitutions or passed laws invalidating same-sex marriage.

      Feb 1, 2010 at 4:00 pm · @ReplyReply to this comment ·
    • MackMichael
      MackMichael

      @WomanBeyondOz

      Thank you so much for meeting your challenges with such grace and love. You are an absolute heroine in my book, and this gay man (who was faced with the same choices your husband made, and took the other path)sends you all the love and respect he has to give, and high hopes for a future ahead in which new dreams come true for you.

      Feb 1, 2010 at 4:14 pm · @ReplyReply to this comment ·
    • Greg Randles
      Greg Randles

      Vaughn Walker’s decision to override democracy will not prevail. The US Constitution as well as the US Supreme Court will not uphold his ruling:

      “The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action? but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

      —Thomas Jefferson to Abigail Adams, 1804.

      Vaughn Walker is not merely a judicial activist, but a judicial despot. Thank God he has retired.

      Oct 1, 2010 at 7:36 pm · @ReplyReply to this comment ·
    • Greg Randles
      Greg Randles

      Flex,

      Your anger betrays your pedophilic desires. Can’t get into the Boy Scouts movement? Frustrated that you can’t get your hands on those young asses? Poor you. Who is making “millions of dollars” of your back? I doubt that the facts surrounding your disgusting, dealth-dealing degenerate “lifestyle” will make a difference. But, let’s look at the facts anyway:

      It is well established that there are high rates of psychiatric illnesses, including depression, drug abuse, and suicide attempts among gays and lesbians. This is true even in the Netherlands, where gay, lesbian and bisexual (GLB) relationships are far more socially acceptable than in the U.S. Depression and drug abuse are strongly associated with risky sexual practices that lead to serious medical problems.

      Monogamy (meaning long-term sexual fidelity to you)is rare in GLB relationships, particularly among gay men. One study reported that 66 percent of gay couples reported sex outside the relationship within the first year, and nearly 90 percent if the relationship lasted five years. In more recent years, the U.S. Centers for Disease Control has reported an upswing in promiscuity, at least among young homosexual men in San Francisco. From 1994 to 1997, the percentage of homosexual men reporting multiple partners and unprotected anal sex rose from 23.6 percent to 33.3 percent, with the largest increase among men under 25.7 Despite its continuing incurability, AIDS no longer seems to deter individuals from engaging in promiscuous gay sex.

      Anal sex is simply not normal by any standards, and that goes for straights as well. The list of diseases found with extraordinary frequency among male homosexual practitioners as a result of anal intercourse is alarming:

      Anal Cancer
      Chlamydia trachomatis
      Cryptosporidium
      Giardia lamblia
      Herpes simplex virus
      Human immunodeficiency virus
      Human papilloma virus
      Isospora belli
      Microsporidia
      Gonorrhea
      Viral hepatitis types B & C
      Syphilis25

      Even going back to 1988, a CDC survey identified 21 percent of all Hepatitis B cases as being homosexually transmitted while 18 percent were heterosexually transmitted.28 Since homosexuals comprise such a small percent of the population (only 3 percent), they have a significantly higher rate of infection than heterosexuals. Anal intercourse also puts men at significant risk for anal cancer. Anal cancer is the result of infection with some subtypes of human papilloma virus (HPV), which are known viral carcinogens. Data as of 1989 showed the rates of anal cancer in male homosexual practitioners to be 10 times that of heterosexual males, and growing. Thus, the prevalence of anal cancer among gay men is of great concern. For those with AIDS, the rates are doubled.

      Other physical problems associated with anal intercourse are:

      hemorrhoids
      anal fissures
      anorectal trauma
      retained foreign bodies

      Gay sex also accounts for the lion’s share of the increasing number of cases in America of sexually transmitted infections that are not generally spread through sexual contact. These diseases, with consequences that range from severe and even life-threatening to mere annoyances, include Hepatitis A,36 Giardia lamblia, Entamoeba histolytica,37 Epstein-Barr virus,38 Neisseria meningitides,39 Shigellosis, Salmonellosis, Pediculosis, scabies and Campylobacter. Does any of this sound “normal” to you?

      The greater incidence of physical and mental health problems among gays and lesbians has serious consequences for length of life. While many are aware of the death toll from AIDS, there has been little public attention given to the magnitude of the lost years of life due to political correctness and the fear of being labelled a “hatemoger,”a “bigot”, or “homophobic.”

      An epidemiological study from Vancouver, Canada of data tabulated between 1987 and 1992 for AIDS-related deaths reveals that male homosexual or bisexual practitioners lost up to 20 years of life expectancy. The study concluded that if 3 percent of the population studied were gay or bisexual, the probability of a 20-year-old gay or bisexual man living to 65 years was only 32 percent, compared to 78 percent for men in general. The damaging effects of cigarette smoking pale in comparison -cigarette smokers lose on average about 13.5 years of life expectancy, which doesn’t look good for gay smokers.

      Let’s be honest here, it is clear that there are serious medical consequences to same-sex behavior. Identification with a GLBT community appears to lead to an increase in promiscuity, which in turn leads to a myriad of STD’s and even early death. A compassionate response to requests for social approval and recognition of GLBT relationships is not to assure gays and lesbians that homosexual relationships are just like heterosexual ones, but to point out the health risks of gay sex and promiscuity.

      Even with the facts in hand, there are far too many GBLTs out there who simply do not care about the risks and will continue to indulge themselves in health-destroying activities such as unprotected sex, multiple partners and will even attend “bug parties” to become willingly infected with an STD, regardless of the consequences.

      The powerful link between homosexuality and pedophilia is well established, particularly with the activities and goals of groups like NAMBLA.

      Finally, same-sex “marriage” is not about “equality,” it’s about a tiny minority group of people, identified as GLBT community, who are determined to push theiur agenda onto society at any cost as part of their plan to legitimize a lifestyle that is destructive in everyway.

      Oct 1, 2010 at 7:52 pm · @ReplyReply to this comment ·

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