Gay marriage oddsmaking

Sonia Sotomayor Attends Formal Investiture Ceremony At U.S. Supreme Court

I'm now more than halfway through my first year at UCLA School of Law, which means I am, unassailably, an expert in the law. So who better to pretend to be GetReligion's legal-scholar-in-residence? Let's start the opining with a commentary on a piece from yesterday's Los Angeles Times that ran under the heading "Gay marriage supporters fear Supreme Court's ruling was an omen." The lede:

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.

This article was written by David G. Savage, the LAT's very able veteran of the SCOTUS beat. And he did a good job balancing the insights of different legal observers. But the story, which was a bit thin to start, spent most of its energy slinging old hash: that many gay-marriage supporters opposed this challenge to Prop 8 because they felt the strategy would fail for want of better timing and a more sympathetic Supreme Court.

Additionally, and here's my real hang up, while observers interpreted the court's ideological split as an indication that conservatives were sympathetic to Prop. 8's defenders, that says little about how the Supreme Court, if it gets this case on appeal, would rule on a very different question.

U.S. district court in San Francisco is being asked whether denying gays the chance to marry violates their constitutional rights. The question the Supreme Court was asked last week was whether broadcasting the hearings on YouTube would prejudice Prop. 8 proponents by injuring them in a manner for which there is no legal remedy. These two questions aren't that related.

Theodore Olson, the conservative heavyweight who is representing gay marriage supporters (not a typo), agreed:

"I'm quite sure it doesn't have anything to do with the merits of our case," Olson said.

This quote is buried in the final third of the article. While this early SCOTUS decision is the best evidence oddsmakers have for predicting a future opinion, it should be emphasized that a later decision would be made on a different issue. While the result might be the same, the high court would most certainly state a very different basis for it.

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