Final Outcome Not Likely To Overturn Proposition 8

The Proposition 8 circus has come to town, pitting conservatives against liberals and religions against the rights of gays and lesbians. Proposition 8 was, of course, the California ballot initiative in 2008 that imposed a statewide ban on same-sex marriage.

After a bruising campaign, at that time, 52.3 % of California voters approved it. All told, a record of more than $60 million was raised on both sides of the issue. The largest single contributor in support of the proposition was the Catholic fraternal organization, the Knights of Columbus, which donated $1.4 million.

Television spots for the proponents in the 2008 campaign relied heavily on scare tactics. One of the most famous repetitive ads featured Richard Peterson, a law professor at Pepperdine University, who alleged that, if Prop 8 failed, people could be sued for their personal beliefs, churches opposed to same-sex marriage could be threatened with losing their tax-exempt status, and children in public schools would be taught about same-sex marriage. Given the tenor of the campaign, 52.3% was seen by some as a moral victory for the opposition.

On Monday of this week, a federal trial kicked off in San Francisco to determine whether the marriage ban constitutes a violation of constitutional rights as they apply to the guarantees of equal protection and due process. Actually, the word "determine" is less than totally accurate. The trial will only produce a ruling and, regardless of what that is, the final determination will undoubtedly be made by the Supreme Court, probably in the fall of 2011.

Some see this as a conflict between the Ninth Circuit and Supreme Courts. The first volley involved the question of whether to allow a live television feed of the proceedings. The conservative and religious factions wanted a complete blackout while the liberal, gay and lesbian factions wanted full, live publicity. The U.S. district judge in the case, Vaughn R. Walker, a Republican, ruled last Wednesday for full coverage at the end of each day and for live feeds into several scattered courthouses during each day's proceedings. Ninth Circuit Chief Judge Alex Kozinski subsequently defended that decision.

On Monday, however, after the issue was brought before it, the Supreme Court determined that it would take until this Wednesday at 1:00 PM PST, to decide whether to back Walker's ruling. In the meantime, so said the court, no live feeds or daily feeds after-the-fact would be allowed.

The Supreme Court's initial action, or lack thereof, is not an encouraging sign for the liberal, gay and lesbian interests. Typically, the court refrains from intervening in an ongoing case unless there is a threat of "irreparable harm." The "irreparable harm" in this case, as propounded by lawyers for the conservative and religious interests, was that the witnesses might be subjected to threats as the result of the coverage. This, despite the fact that their names and words would appear in the press each day in any event.

Eight jurists agreed with the petitioners. The only dissenter to the decision was Justice Stephen G. Bryer whose accompanying statement said: "In my view, the court's standard for granting a stay is not met." He went on to assert his belief that the lawyers did not demonstrate the "likelihood of irreparable harm."

In the first two days of the trial, witnesses have debated the meaning of marriage and sexual orientation, and gay and lesbian couples have emotionally described the humiliation of being denied the right to wed.

Looking down the road to the eventual landmark ruling by the Supreme Court, it is of no small consequence that the court's makeup will likely still have a conservative tilt. Today, five of the Supremes are conservative and the appointments of Chief Justice John Roberts and Justice Samuel Alito have given it a stronger rightward slant than it had previously.

Furthermore at least five of the jurists are Catholic and the Catholic Church has come out in strong opposition to gay and lesbian marriage. It is not certain if Sonia Sotomayor is also a practicing Catholic. It is known that she did attend Roman Catholic schools and, if she is still a Catholic, that would make six on the court.  In other words, Catholics would comprise 67% of the court while making up only 23% of the nation's population.

Consequently, as things now stand, the ultimate outcome does not seem favorable for the prospects of overturning the ban on same sex marriage.