Issue:  Vol. 48 / No. 8 / 22 February 2018

Poll finds Americans oppose Prop 8 repeal

A day after the lawyers arguing the federal Proposition 8 trial in San Francisco wrapped up their presentation of evidence in the case, a Canadian research company released a poll finding that a majority of Americans do not want to see the federal courts strike down the same-sex marriage ban.

A majority of Americans (58 percent) would prefer the Supreme Court judges rule that marriage is heterosexual only, while 34 percent would like a federal definition of marriage without gender limitations, according to the poll.

The survey also found that 52 percent of respondents believe if the Supreme Court reviews the Proposition 8 case the judges will rule that marriage is between a man and a woman. Only 28 percent of Americans think the U.S. Supreme Court will define marriage federally as a union between two people, regardless of gender.

Angus Reid Public Opinion, the public affairs practice of Vision Critical, which has an office in San Francisco, conducted the online poll of 1,000 U.S. adults. The full poll results can be found at the firm’s Web site.

A spokesman for the plaintiffs in the case dismissed the polling results and questioned its accuracy in an interview with the Bay Area Reporter. Regardless of the poll’s findings, he said public opinion should not impact the outcome of the Prop 8 lawsuit.

“We are not concerned of an online poll of self-selected respondents from a Canadian firm we have never heard of,” said Yusef Robb. “Our founding fathers did not intend for our constitutional rights to be determined by the polls. Our courts exist to protect every American’s constitutional rights regardless of what the polls say; they have led the way for full equality time and time again.”

The lawsuit over whether Prop 8 is unconstitutional, known as Perry vs. Schwarzenegger, is on hiatus as far as public proceedings go until March when U.S. District Judge Vaughn Walker (pictured at right) may schedule the closing arguments in the case. Walker has no deadline to render his decision, which many legal experts predict will find the same-sex marriage ban to be unlawful.

But no matter how the judge rules, the case is sure to be appealed all the way to the U.S. Supreme Court. LGBT activists have voiced frequent concerns that the nation’s highest court, dominated by conservative justices, is not ready to rule for marriage equality.

What impact, if any, public opinion may have on how the various federal judges and justices rule on the Prop 8 case was addressed Wednesday by the attorneys for the plaintiffs, two same-sex couples who were denied the right to marry in California. David Boies, one of the lead co-counsels (pictured at top), said courts in the U.S. have a history on rendering decisions that a majority of Americans opposed at the time.

He pointed in particular to Brown vs. Board of Education, the landmark civil rights decision that ended segregation in public school, as one example of where the Supreme Court justices were “no doubt far ahead” of the American public’s views on the subject. Boies also pointed to the California Supreme Court’s 2008 ruling In Re: Marriage Cases that struck down the state’s anti-gay marriage statutes, which lead to the voters’ rejection of the decision through passage of Prop 8 that November.

“The court has to be ahead of the public, otherwise we wouldn’t need the court,” said Boies.

Ted Boutrous, another one of the plaintiffs’ attorneys, told reporters “there has been this myth that the Supreme Court follows public opinion polls.”

He pointed out that at the time of the court’s Loving vs. Virginia decision that ended state bans on interracial marriages, 74 percent of Americans were against interracial marriage. As with that ruling, which said people have a right to marry the person of their choice, gays and lesbians should also be allowed to marry the person they love, argued Boutrous.

“This case is the next step in that line of reasoning,” said Boutrous. “The conclusion, I think, is unavoidable: this law is unconstitutional.”

Andrew Pugno, the general counsel for the Yes on 8 campaign, told reporters Wednesday that the two cases have nothing to do with one another.

“This case is not similar to Loving vs. Virginia. This is not about the right to marry. This is about the meaning of marriage,” he said.

As for fears about it not being the right time to bring forward a federal same-sex marriage lawsuit, Boies said he is confident those fears have been addressed through the expert witness testimony and evidence produced during the Prop 8 trial.

“The American public has gotten a sense of what the facts are. We have brought to light the paucity of the reasoning to deny gays and lesbians from marrying,” said Boies, who expressed confidence that the ultimate outcome of the case would be a win for the LGBT community.

His co-counsel Ted Olson not only will deliver the closing arguments before Walker but will also argue the case before the U.S. Supreme Court, should the justices agree to hear it. Olson, a former U.S. Solicitor General, successfully argued the Bush vs. Gore case before the court and, just last week, scored another victory when the court struck down bans on corporate dollars in political races.

Asked what he had learned from losing to Olson in the Bush vs. Gore case, which ended the legal battle over the 2000 presidential election, Boies said simply that “You need five judges” out of the nine to win.

“How you get to a majority on the U.S. Supreme Court is to ensure you have a good record below – I think we do – and present your argument well,” said Boies. “With Olson I think he will, and then you have to let the court decide.”

— Matthew S. Bajko, January 28, 2010 @ 5:16 pm PST
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