Supreme Odds: How Will Justice Samuel Alito Vote on Marriage Equality?

Justice Samuel AlitoWhen President George W. Bush nominated federal appeals judge Samuel Alito to the Supreme Court, LGBT legal eagles needed little time to assess the likelihood he would give us a fair shake.

“Alito puts his very conservative political agenda above a commitment to the core principles in the Constitution and the rights of all Americans,” declared Kevin Cathcart, executive director of Lambda Legal. “Alito’s record on the bench reveals a judge who has deployed his fine legal craftsmanship to service his conservative political agenda rather than equality and justice.”

Actually, his record wasn’t all bad. As a senior at Princeton in 1971, Alito supervised a task force that recommended the decriminalization of sodomy and said discrimination against gays in hiring “should be forbidden.” As a federal appeals court judge in 2004, he penned a decision in Shore Regional High School v. P.S. that supported the efforts of the parents of a boy who was tormented by antigay epithets to have the student transferred to another school.

And on the Supreme Court, he was the lone dissent in Snyder v. Phelps, where the 8 to 1 majority upheld the First Amendment right of Kansas agitator Fred Phelps to stage loud and antigay hate-filled protests near the funerals of American soldiers killed in Iraq. Alito said he does not believe the First Amendment is “a license for the vicious verbal assault that occurred in this case.”

But his questions during oral arguments in March on the Prop 8 and DOMA cases sounded more like the man on a right-wing mission that LGBT activists initially feared.

Here’s what we think the odds look like, statistically speaking, for Alito, as well as some other factors to weigh in when considering his vote:

Percent voted pro-gay (three cases): 67

Percent voted with liberal wing this session: 16

Odds he’ll vote for two pro-gay decisions: 1 in 6

Appointed by: President George W. Bush

Age: 63

Religion: Catholic

Most notable case: Alito led the dissent against the Christian Legal Society v. Martinez decision. The majority upheld the right of schools to withhold school resources from groups that discriminated based on sexual orientation. Alito said the majority was taking away the Freedom of Expression from a group that “offends prevailing standards of political correctness….”

Interesting factoid: Having established himself as a staunch conservative on the Supreme Court, he’s earned the nickname “Scalito” from some court observers. And his wife told Fox News that he’s a gourmet cook.

Notable remark during the Prop 8 argument: “Traditional marriage has been around for thousands of years,” said Alito. “Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a good thing. It may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet? I mean we … do not have the ability to see the future. “

Notable remark during DOMA argument: Alito asked plaintiff Edith Windsor’s attorney, Roberta Kaplan, whether it would be constitutional for the federal government to “just get rid of the word ‘marriage,’ take it out of the U.S. Code completely, [and] substitute something else and define it …to include same-sex couples.” Kaplan said yes. “So,” said Alito, “it’s just the word ‘marriage,’ and it’s just the fact that they use the term ‘marriage’?”

Lisa Keen, co-author of Strangers to the Law: Gay People on Trial, will be posting nearly daily on legal matters leading up to and beyond the Supreme Court decision. Her coverage on this and other issues is also available at