Proposition 8 - California Gay Marriage Headed Towards Supreme Court; One Justice Holds Key

Attorneys in gay marriage case are preparing to sway the nine justices.

ByABC News
August 5, 2010, 8:44 AM

Aug. 5, 2010— -- Both sides of California's gay marriage debate say yesterday's ruling by a federal district court judge was only the opening salvo in a legal battle headed for the U.S. Supreme Court. And they've begun honing their arguments to ultimately sway the justices who will have the final say.

U.S. District Court Judge Vaughn Walker's opinion stated that the state's same-sex marriage ban amounts to unconstitutional discrimination and should be immediately struck down. He later issued a stay on the order overturning Proposition 8 to allow supporters of the measure to argue why the ban should remain in effect while they pursue an appeal.

Read Judge Walker's opinion HERE.

"We have other battles aheads of us," said former Bush administration Solicitor General Theodore Olson, who joined former counsel for Al Gore in the 2000 election, David Boies, in opposing Proposition 8.

"Ted and I have a deal -- He is going to get the five justices that were for him in Bush v. Gore and I'm going to get the 4 justices that were with me in Bush v. Gore," Boies joked Wednesday.

Supporters of the California same-sex marriage ban acknowledged Judge Walker's decision was not unexpected and conceded propsects that it will be reversed by the Ninth Circuit Court of Appeals also looked uncertain. But they are holding out hope for the Supreme Court.

"Let's not lose sight of the fact that this case is headed for the U.S. Supreme Court, where the right of states to define marriage as being between one man and one woman will be affirmed," said Maggie Gallagher, chair of the National Organization for Marriage.

When the case reaches the high court, Justice Anthony Kennedy could become the swing vote on a bench narrowly divided by liberals and conservatives, court observers say.

"It has been Justice Anthony Kennedy at the center of a very sharply polarized four-four court who has consistently been over the years a very strong voice on gay rights," Slate's Dahlia Lithwick pointed out on "Good Morning America" today.

"He's been careful to say, 'This doesn't mean I'm for gay marriage, by the way.' But time after time, he's not just been the fifth vote for anti-discrimination principles, but he's also been a strong vote for things like dignity and humanity and the right to choose your own lifestyle," she said.

Still, how Kennedy or the other eight justices will vote is only speculation. The court does generally have a record of not making rulings that are contrary to majority public opinion.

A California Field poll of registered voters last month found 51 percent support legalizing gay marriage with 42 percent opposed.

But nationwide public views are more narrowly divided, according to the most recent ABC News/Washington Post poll. Forty-seven percent of Americans polled favor gay marriage while 50 percent are opposed.