Former Judge and Fox News Contributor Andrew Napolitano argued that the Supreme Court would uphold Judge Vaughn Walker’s ruling on Proposition 8. Appearing on the Fox Report with Shepard Smith, Napolitano was quick to highlight Romer v. Evans and Lawrence v. Texas, two cases authored by Justice Anthony Kennedy, both of which sided in favor of gay rights.

“So, when you predict what the Supreme Court is going to do, you look at what they’ve done in the past,” said Napolitano.  “If Justice Kennedy is consistent with his views on those two cases, I would think he would side with Judge Vaughn Walker on this one.”

Napolitano focused greatly on Judge Walker’s use of Loving v. Virginia in creating a precedent for his ruling, by saying, “Until recently, as late as the late 1960s the state of Virginia prohibited bi-racial marriage.” Smith interjected, “How stupid does that look now. What a bunch of fools they were. That’s how this is going to look in 40 years.”

Napolitano went on to explain the relationship between the Walker ruling and Loving, “It was absurd and it was done under the theory of states’ rights. The states regulate marriage and the federal government doesn’t. The Congress wouldn’t get involved, the Supreme Court got involved and said ‘we don’t do that anymore, consenting adults have the right to marry each other.’ It’s a very interesting case, it was cited by Judge Walker in his decision for the following proposition, the right to choose with whom you will cohabit and share your life is the most intimate personal choice a person makes. What business is it of the government who they choose.’ That’s basically what he said yesterday when he said the government can’t tell you that you must choose someone of the opposit sex.”

Smith once again offered his opinion, saying, “If you can’t tell straight couples ‘here’s how you gotta do things’ you can’t tell gay couples, because there’s equal protection under the law.”

“The constitution requires that states treat similarly situated people in a similar way…You can’t have one set of laws for straights and
another set of laws for gays, that’s basically what he argued,” Napolitano said. ”To the argument that 52% of Californians voters don’t want this, he said that we have certain natural rights like speech, privacy and thought and they do not depend on the popularity of our neighbors for their existence, they come from our humanity. That is basically the argument that Judge Walker made yesterday, which I suspect that a majority of the Supreme Court will accept.”

Napolitano’s assessment has been echoed by a number of Fox News contributors, including Margaret Hoover, who called on conservatives to support rather than oppose same-sex marriage.

Click here to view the rest of Napolitano’s interview with Smith.