Prop 8 and the Supreme Court

The lawsuit against California’s Proposition 8 will see the Federal Court in a couple months. As noted before, the lawsuit is likely to pass through the Federal Court and onto the Supreme Court.

Gay Rights activists everywhere are terrified by this prospect, in that if the Supreme Court rules that Prop 8 is constitutional, the Gay Rights movement will see major setbacks. Progress that has been made might be undone. These feelings are based upon the fact that the Supreme Court has a majority of conservative judges. In fact 6/9 of the current judge can be considered as conservative. Furthermore, there are rumors that the entire lawsuit is simply a shallow conspiracy; the lawsuit is to reach the conservative Supreme Court only to be shot down, thus creating the significant setbacks to the Gay Rights movement.

Of course, the lawyers proposing the lawsuit (David Boies, of the Gore administration, and Ted Olson, of the Bush administration) are denying these claims, stating that they only need to look into the eyes of gays and lesbians to know that Proposition 8, and any law infringing upon the rights of gays, is unconstitutional and is just simply wrong. Keep in mind, however, that Ted Olson worked for the Bush administration, and is typically considered a conservative. This, of course, could mean nothing, seeing as there are conservatives who vote favorably for Gay Rights.

I tend to take things at face value, and would like nothing more than to believe Mr. Olson’s claims.

However, whether or not Olson and Boies have good intentions at heart (they could simply be making an ill informed decision), I decided to take a quick look at the current make-up of the Supreme Court, and what decision they are most likely to make should they see the lawsuit against Prop 8. Keep in mind that this is a “shallow” scan of the Supreme Court. This is not an in-depth analysis. I, of course, mention the justices’ stance on gay rights. Further, I mention their stances on Roe v. Wade, a similar court case in that Roe v. Wade overturned a wide scale set of conventions. If gay rights were to enter the Supreme Court, the situation would greatly parallel that of Roe v. Wade. If anyone would like to see an in-depth analysis, contact me and I’ll try to post one up. Each judge is put on a scale of zero to ten, zero being, not at all likely to vote favorably, and ten being will vote favorably.

Chief Justice:

John Roberts

Roberts was nominated by George W. Bush and is a conservative. However, in a pervious ruling, Roberts ruled that it was unconstitutional for Texan boy scouts from accepting gay scoutmasters. Such decisions put Roberts on the rocks concerning gay rights issues. Nevertheless, Roberts is more likely than not to rule unfavorably concerning the lawsuit, not based on his opinions on gay rights, but due to his opinions on radical decisions like Roe v. Wade, decisions that change too much too quickly. 4/10

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Associate Justices:

Samuel Alito

Alito was nominated by George H.W. Bush and is a conservative. Like Roberts, Alito has not made it clear to the public whether or not he is pro-gay marriage or not. He did, however, vote against discrimination against gays concerning the Texan boy scouts incident. In light of Roe v. Wade, Alito does not like the decision at all. Keep in mind, however, that he is extremely biased based on his views on abortion (he doesn’t like it). But Alito is also against overturning Roe v. Wade, as many rulings have built off of the decision as a precedent. This shows that Alito is much like Roberts; he is unlikely to vote favorably concerning the lawsuit, due to the fact that anti-gay marriage laws, such as DOMA, are currently prevalent in the US. 4/10

Stephen Breyer

Breyer was nominated to the Supreme Court by Bill Clinton and is liberal. Breyer is for gay rights and believes that it is unconstitutional that gays are denied civil rights. Furthermore, Roe v. Wade proves that Breyer is unafraid to vote favorably on radical decisions. 10/10

Ruth Bader Ginsburg

Ginsberg was nominated to the Supreme Court by Bill Clinton and is liberal. Ginsberg is, of course, for gay rights, and, of course, voted that it was unconstitutional that gay scoutmasters be discriminated against. Roe v. Wade proves that Ginsburg is not afraid to vote favorably on radical decisions. However, considering Ginsburg’s ‘slightly higher’ bias concerning Roe v. Wade, it is not clear whether or not she would make such a radical decision again. 8/10

Anthony Kennedy

Kennedy was nominated by Reagan, and, based on his court decisions, he swings both on the conservative side and the liberal side. In terms of gay rights, Kennedy leans towards the liberal side, and consistently favors that constitutional rights be extended to gays. According to Roe v. Wade, Kennedy seems on the edge. He did vote favorably in Roe v. Wade. Whether he would make a like decision for gay rights is unclear. 7.5/10

Antonin Scalia

Scalia was nominated by Reagan and is considered to be one of the stronger core conservatives. Scalia is not likely to the least bit to vote favorably for gay rights. It has been said, but yet to be clearly proven, that Scalia is a homophobe. However, whether or not Scalia dislikes gays and does not advocate gay rights, Scalia will not vote favorably for the same reasons he did not vote favorably for Roe v. Wade. He will simply not pass such a wide-scale and radical decision.0/10

Sonia Sotomayor

Sotomayor was nominated by current President Obama and is liberal. She has yet to rule on any gay-related issues or make any formal comments regarding such. However, gay legal activists look favorably upon her (a definite plus). Sotomayor was not on the panel during Roe v. Wade, and it is unclear what her status on such decisions are. Currently, she defends Roe v. Wade as “settled law.” 6/10

John Paul Stevens

Stevens was nominated by Ford and is considered to be the most liberal justice in the current Supreme Court. However, Stevens has also been considered to place, ideologically, as a dead center moderate. He advocates gay rights, and he voted that Boy Scouts should accept gay scoutmasters. He is not afraid to make radical decisions (he upheld Roe v. Wade), making him likely to vote favorably for gay rights. Stevens is set to retire during Obama’s presidency. Of course, Obama is extremely likely to nominate a liberal justice, keeping the current balance of liberal and conservative. 7/10

Clarence Thomas

Thomas was nominated by George H. W. Bush and is considered to be one of the most conservative members of the Supreme Court. He voted unfavorably concerning whether or not the Texan Boy Scouts should accept gay scoutmasters. Also, Thomas has not formulated a stance on Roe v. Wade, making it unclear whether or not he would vote favorably on a radical wide-spread decision. 2/10

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Altogether, everything adds up to 48.5/90, which would be about 53%. Furthermore, 5 out of the 9 justices rate above ‘5’ on the scale from 0 to 10, giving Olson and Boies a slight advantage going into the Supreme Court. Keep in mind that this advantage is slight, and can sway either way quite easily. It is completely unlikely that the Supreme Court will come to a unanimous decision.

Hopefully, the coming decisions concerning Prop 8 will spark media debate and awareness, and make gay rights an important issue in the eyes of the people.

I can only hope that Olson and Boies succeed.