David Savage Thinks SCOTUS Will Uphold Prop 8

Today's Los Angeles Times contains analysis of the Supreme Court's intervention in the federal Proposition 8 trial which concludes that things do not look good for advocates of marriage equality at the nation's highest court. David Savage is the Los Angeles Times Supreme Court reporter and his piece today has these important paragraphs:

Legal experts on the left and right gleaned three insights from the high court intervention:

First, the justices are following this case closely. They typically rule on appeals after cases are decided. It is rare for them to intervene in a pending trial.

Second, the court's conservatives do not trust Walker to set fair rules for proceedings. Their opinion described how he had given shifting explanations of his plans. This suggests Walker's ruling on Proposition 8 may be viewed with some skepticism.

And third, the majority has a distinct sympathy for the foes of same-sex marriage. The justices cited a series of newspaper stories reporting on the threats and harassment faced by those who have publicly opposed gay unions.

"The ideological split was stunning," said Erwin Chemerinsky, a liberal law professor and dean of the UC Irvine Law School. "It made me think of Bush vs. Gore" -- when, after the 2000 presidential election, the Supreme Court issued a 5-4 emergency order to halt the recount of Florida's paper ballots and three days later ended the recount.

Last week's intervention in the San Francisco case "suggests the majority has a very strong sympathy for Prop. 8's supporters," USC law professor David Cruz added.

M. Edward Whelan, a conservative former clerk to Justice Antonin Scalia, called the high court decision "a stinging rebuke" of Walker that "strongly signals that at least five justices have serious questions about his impartiality and judgment in this matter."

Chemerinsky, Cruz and Whelan all cautioned against predicting the outcome in the high court, but said the justices' ruling was an early sign that the advocates of a constitutional right to same-sex marriage may face an uphill fight.

I think there's almost no chance of the Supreme Court upholding a ruling from the 9th Circuit which goes as far as California's 2008 landmark gay marriage decision In Re Marriage Cases but I do think it is possible there could be 5 votes on the court to rule that it violates the federal constitution when a minority is granted rights through a judicial proceeding and then the majority electorate votes to take those rights away. That should be a legal principle that Justice Anthony Kennedy should be able to agree with, even if it would only apply to striking down Proposition 8 and legalizing marriage in California, and not the 45 states where it is currently not legal already.