A Look at Supreme Court Justice John Roberts and Gay Marriage

The Wall Street Journal's Jess Bravin looks at Supreme Court Chief Justice John Roberts and the upcoming case on DOMA and Proposition 8 the Court will be considering at the end of the month:

RobertsChief Justice Roberts doubtless knows "that history is going in a certain direction," even if he isn't persuaded that the Constitution requires invalidation of laws denying recognition to gay marriages, said Richard Pildes, a law professor at New York University. If that leads him to side against Mr. Obama's position, it could place the chief justice in "a tragic kind of position—knowing how a decision they believe is correct today is going to look bad 15 years down the road."…

…Legal experts say that how the chief justice expresses his position on gay marriage—whether he writes his own opinion or joins that of another justice—could be as significant as how he votes. Should he vote to uphold either or both of the laws against gay marriage, his opinions will be parsed for indications of his attitude toward gay couples and whether he writes favorably of political trends that could expand gay marriage without court intervention.

Under that alternative, in 20 years he could say, "See, we said this is a matter for legislative resolution and not judicial resolution, and things turned out well," said Harvard law professor Mark Tushnet. "To be able to do that, the opinion has to be very carefully written to make it clear that the court is taking no position on the merits of gay marriage."

On a side note, the Chairman of the National Organization for Marriage John Eastman smeared Roberts yesterday for giving his adopted children the "second-best" option. Whether that smear has any effect on his thinking about fairness and equality may never be known.

Roberts Worked Behind the Scenes on Gay Rights Case [tlrd]


  1. MiddleoftheRoader says

    Unfortunately, Chief Justice Roberts could do exactly as the news article says: “I’m not against gay people or same-sex marriage, but this is an issue for the legislature and not the courts.”

    Of course, if Chief Justice Warren had taken that approach to inter-racial marriage in Loving v. Virginia, it would have been viewed as clearly racist and, 20 or 40 years later his reputation would have remained soiled. So does Chief Justice Roberts really want to be in that position where he can intellectually “justify” an anti-marriage (and pro-DOMA) ruling, but where history will call it for what it was? NO ONE knows the answer to this question except for Chief Justice Roberts himself.

    He also has two almost-teenagers, ages 12 and 13. How does he want his children to view him, especially if he upholds these discriminatory laws? He is a family man, so maybe that matters as much to him as how history will view him. But again, NO ONE except him really knows.

    All of this suggests the importance of things like the “conservatives” brief filed in the Supreme Court against Prop 8. If Chief Justice Roberts can square his intellectual conservatism with the inevitable result that allows for same-sex marriage and the demise of DOMA (whether through the political process or court decisions), then there’s a chance he’ll be on our side. The fact that many conservatives, Republicans and libertarians offer an intellectual path to that result is a good sign.

    Perhaps the best route for the Chief Justice is to take the exact approach of the Obama Administration: Prop 8 is unconstitutional because California (and the other states that give domestic partners / civil unions the same exact rights as opposite-sex married couples) has no compelling reason (and no rational justification) for providing everything but the “title” of “marriage” to same-sex couples. In that scenario, the Chief Justice would not have to decide right now whether it is constitutional for Alabama, Michigan, Virginia and 30+ other states to reject any type of same-sex relationships. He can say that once California went 90% of the way, it could not constitutionally refuse to go the other 10% by refusing the word “marriage”. That’s probably as far as the Chief Justice would go at this point — and let’s hope he will go that far. After all, is he really going to stretch beyond what even the Obama Administration has argued? Let’s hope he votes to strike down DOMA for similar reasons.

    In about 110 days (by July 1), we will know how all of this shakes out.

    Postscript: Even if we lose Chief Justice Roberts, there is still some hope that Justice Kennedy will do the right thing.

  2. FlexSF says

    Anyone who opposes gay marriage is a bigot, period. The reason why they’re a bigot is because of the real, tangible, discriminatory laws that are in place. By supporting these barriers, they’re doing more than expressing an ignorant opinion, they’re agents of bigotry. They deserve humiliation.

  3. Zlick says

    The Obama administration also argued, quite forcefully, for strict scrutiny to be applied to cases involving sexual orientation. That leaves the so-called 8-State-Solution on the cutting room floor.

  4. Anthony says

    @Zlick, heightened scrutiny, not strict. But it doesn’t matter really, because in either case the anti gay law will be unconstitutional

  5. Randy says

    I think that we will probably win the standing argument, and the District Court decision will stand (for California only).

    If they do make some tragic error by finding standing for the Proponents, then I think our case is easily won on Due Process grounds, without ever reaching Equal Protection.

  6. Nanuq says

    What if the Chief Justice “recuses” himself because of his work on Romer long before he became a justice?

    Is that even a possibility?

  7. k says

    Re: the comment posted by MiddleoftheRoader above, in regard to his children, ages 12 and 13. They attend the same private school that my nephew and niece do — which is associated with a religious denomination that is significantly pro-gay. I can’t imagine that this wouldn’t influence him in a positive way.