The United States 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.

Proposition 8 has already been upheld by the California Supreme Court with Justice Kathryn Mickle Werdegar stating it set precedent as “no previous case had presented the question of whether an initiative could be used to take away fundamental rights”.

California Attorney General Edmund G. Brown Jr. stated the California Supreme Court should overturn Proposition 8. General Brown stated that California’s initiative-amendment process does not give voters the right to overturn rights in California’s Declaration of Rights without a “compelling justification.”

California’s Declaration of Rights goes far beyond the U.S. Constitution and any other state in extending and protecting individual freedoms.

Supporters of same-sex marriage then sued the State of California in federal court claiming the California Supreme Court’s decision violated amendments to the U.S. Constitution, which California ratified.

The U.S. Supreme Court’s 5-4 decision last week, with conservatives in the majority, intervened in the San Francisco district court trial on behalf of the defenders of Proposition 8.

The U.S. Supreme 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 Prop 8 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 U.S. 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.

Attorney Charles Cooper, a Reagan-era veteran who is well known to the justices, filed an emergency appeal last weekend urging them to block all video coverage of the trial — even if it were limited to a few courthouses in California. By Monday morning, the high court had granted the appeal and ordered a halt to any video coverage outside the courthouse.

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.

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.

“The worst-case scenario is a 9th Circuit ruling in favor of the plaintiffs. That will force the U.S. Supreme Court’s hand, and it will lead to a bad precedent,” said Vikram Amar, a law professor at UC Davis and a former court clerk. “I don’t see the five justices to affirm that. There may not be two or three even.”

• In 2009, the U.S. Supreme Court rejected a challenge to “don’t ask, don’t tell.” The U.S. Supreme Court rejected the challenge at the request of the Obama Administration. (previous story)

• In 2006, the 9th U.S. Circuit Court of Appeals tossed out a LGBTI case, saying the federal judiciary should stay out of it and leave such issues to the states.

Historically, the U.S. Supreme Court does not get too far ahead of either public opinion or the law in the majority of states (in which case same-sex marriage is overwhelmingly illegal).

Currently, gay marriage is the law in Iowa and in parts of New England.

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