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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  • Jerry

    Brad, I’m having trouble finding the direct religious aspect to your post.

  • tmatt


    “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.”

    Wouldn’t the pro-Prop 8 camp include more than a few religious groups and traditional believers?

  • Brad A. Greenberg

    That sounds about right. This is one of those stories profoundly influenced by, and of significant importance to, some religious people. I’d call it religion adjacent.

  • Peter

    Although I’d bet that if the NYT described Prop 8 supporters as made up primarily of religious conservatives, we’d hear compaints on GR about how broad the coalition is and that religious people were being scapegoated.

  • Chip

    Like abortion, do you consider any mention of gay marriage as automatically a religious issue? Obviously there is a religous aspect to it, but Brad is focusing on the different legal questions the Court is considering.

    Should every story about US torture policy be automatically considered a religious story? Theological issues are just as closely intertwined in political decisions about the use of torture as they are in political decisions about abortion or marriage.

    BTW, I’m asking these questions because I don’t have a firm answer to them in my own mind.

  • Peter

    Adding to Chip’s point, poverty and non-abortion related health care stories are just as religious as gays and abortion, but those never seem to get the GR treatment.

  • tmatt


    When religious groups are involved in the debate, or at the heart of the debate, those are certainly religious topics.

    It’s all about whether faith language and issues and people are at the heart of the PUBLIC debates that the press is covering.

    There is a reason that, when studying media bias in recent years, almost all of the studies have focused on abortion, sexuality and, yes, religion.

  • Mollie


    Also, if you see any stories that you think do deserve the GR treatment — about poverty or non-abortion health care or whatever — be sure to submit them. We get very few submissions on those topics.

  • Jerry


    Of course religion is involved but it was not mentioned in this posting. So, at least from my limited perspective, it’s present in this blog entry only as a ghost.

  • Dave

    This decision about broadcasting does not necessarily reflect an opinion on the core issue. It arises directly from the backlash behavior of Prop 8 opponents toward a few Prop 8 supporters, and public threats of more, after Prop 8 passed.

    GR aspects of this were well developed by Mollie at the time.

  • dalea

    When I read the story I found it puzzling. It is not exactly news but not entirely opinion. (The LA Times uses an ink that is very difficult for those of us who are color blind to see, which is why I rarely ever look at the paper.) As to the religious angle, there is virtually no secular opposition to same sex marriage. So, Prop8 has always a religious angle.