Joseph Landau wrote an op-ed for the New York Times about the possibility of Chief Justice John Roberts voting for same-sex marriage in the Supreme Court case of Obergefell v. Hodges.
ON Tuesday, when advocates press the United States Supreme Court for a nationwide right to marry for same-sex couples, they and their supporters will have reason to be optimistic. Since the court decided United States v. Windsor in 2013, a vast majority of state and lower federal courts — not to mention the wider public — have embraced the overwhelming moral, logical and evidentiary case for the freedom to marry.
The litigants hope to persuade the swing justice, Anthony M. Kennedy, who has written three previous opinions affirming gay rights, and his four more liberal colleagues. But what about Chief Justice John G. Roberts Jr.?
In Windsor, five justices ruled that Section 3 of the Defense of Marriage Act, which refused federal recognition of same-sex couples with valid marriages, violated the Fifth Amendment. Chief Justice Roberts dissented, but he focused primarily on procedural issues — leading some observers, like the Slate writer Mark Joseph Stern, to speculate that he could come around this time.
Others have wondered whether Chief Justice Roberts was instrumental in the Supreme Court’s decision last year to not review appeals of lower court rulings upholding the right of same-sex couples to marry. In the wake of those rulings, the number of states with same-sex marriage rose to 37 from 19 — making it easier for the court to now make marriage equality the law of the land.
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As chief justice, Mr. Roberts occupies a unique place in the judiciary. While it is not his job to simply validate the decisions of the lower court judges — the Supreme Court should reverse the lower courts when they err — having faith in the lower federal judiciary, and showing respect for the dialogue between the Supreme Court and lower federal courts, might be especially appropriate here.
Since the 2013 Windsor ruling, four federal appellate courts and more than 30 federal trial judges have issued pro-marriage rulings for same-sex couples. (By contrast, only one federal appellate court — the Sixth Circuit, based in Cincinnati — and a handful of federal trial judges have ruled against same-sex couples.) These judges reflect a broad array of appointees by Republican and Democratic presidents alike. Does Chief Justice Roberts truly believe that so many of his lower-court colleagues have gotten the law wrong? Possibly — but the growing consensus on the ground could nudge him to side with a vast majority of his colleagues on the federal bench.
The states will argue that courts should not interfere with their sovereign power to decide certain questions of marriage policy or curtail the policy debate. Both arguments generally appeal to conservative jurists. But the court may decide that a uniform rule favoring same-sex couples would be the more prudent and moderate outcome.
In short, the posture of these cases, their significance in the broader history of the Supreme Court, and their administrative and practical implications are likely to give the chief justice pause before voting against the right to marry. If Chief Justice Roberts focuses on these questions, his vote should be with the plaintiffs this time around.