With the Supreme Court’s decision today to review cases out of Ohio, Michigan, Tennessee, and Kentucky, the Justices have finally agreed to hear challenges to state laws prohibiting same-sex couples from marrying. Given the Court’s reasoning in 2013 when it struck down a federal law defining marriage as between a man and a woman for federal purposes, the Justices are likely to recognize what almost all lower courts since then already have: that the Constitution prohibits state bans on same-sex marriage. But one of the votes in favor of that result could be a surprise: that of Chief Justice John Roberts.
Back in 2013, the Court considered two cases having to do with marriage equality: United States v. Windsor, which involved a challenge to a key part of the federal Defense of Marriage Act, and Hollingsworth v. Perry, which involved a challenge to California’s same-sex marriage ban (Proposition 8). In both cases, before the Court could consider the constitutionality of those laws, it had to address whether it even had jurisdiction to do so. In Windsor, a majority of the Court concluded that it did, and went on to hold that DOMA’s restrictive definition of marriage for purposes of federal law was unconstitutional. In Perry, a majority of the Court decided that it did not have the power to decide the constitutionality of Proposition 8 because Proposition 8’s supporters lacked standing to appeal a District Court ruling that the measure was unconstitutional.
In Windsor, Chief Justice Roberts was on the wrong side of marriage equality. Although he concluded that the Court lacked the power to decide the case, he went out of his way to say that he thought the Court’s majority was wrong to strike down DOMA. In a solo dissent, Roberts wrote that the provision of DOMA at issue in Windsor was “amply justified” by “[i]nterests in uniformity and stability,” and he did not want to “tar the political branches with the brush of bigotry.” And he also tried (unsuccessfully it turns out) to discourage lower courts from viewing Windsor as saying anything about state bans on same-sex marriage, writing in his solo dissent that “[t]he Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States … may continue to utilize the traditional definition of marriage.” Indeed, Roberts almost suggested that the case for state marriage bans was stronger than the case for DOMA, noting that states have the “historic and essential authority to define the marital relation.” These aren’t auspicious signs that the Chief Justice will vote to strike down state marriage bans later this year.
But there’s reason to think the Chief Justice might nonetheless find himself on the right side of the Constitution (not to mention history) this time around. To start, the Chief’s emphatic recognition that the Court was not deciding the constitutionality of state marriage bans in Windsor did carve out space to allow him to decide that issue however he might want in a future case. (Justices Scalia, Thomas, and Alito were not so coy, all making explicit exactly where they stand when it comes to marriage equality.) And while Roberts joined the portion of Justice Scalia’s dissent dealing with the Court’s authority to decide the case, he did not join the portion of Scalia’s dissent addressing the constitutionality of DOMA. Perhaps this was merely Roberts, as Chief Justice, distancing himself from the vitriol that so often fills a Scalia dissent whenever the rights of gay people are involved. But perhaps it was more than that; perhaps this was Roberts doing as little as possible to associate himself with particular views about the legitimacy of marriage discrimination, again leaving himself a clean slate for a future case.
Moreover, in Perry, it was Chief Justice Roberts who wrote the opinion concluding that the Court had no authority to decide the case. Although that opinion thus did not decide whether Prop 8 was constitutional, it did allow the District Court decision holding Prop 8 to be unconstitutional to remain in place, thereby permitting same-sex marriages to go forward in California.
Since then, a great deal has happened. Relying on Windsor, lower court after lower court has concluded that state bans on same-sex marriage are unconstitutional. And last fall, the Supreme Court denied seven separate requests to review cases that struck down state marriage bans, clearing the way for marriages of gay and lesbian couples to proceed in all of the states within the jurisdiction of those courts. We can’t know for sure how the Chief Justice voted on those petitions for review (those votes are not public), but there’s at least some reason to think that he might have voted not to hear the cases. After all, it only takes four Justices to vote to hear a case, and Justices Scalia, Thomas, and Alito all made clear in Windsor their view that the Constitution allows state marriage bans, and thus likely would have wanted to review cases invalidating such bans. If that’s right (and, again, we can’t know for sure), then the Chief Justice voted not to review those cases and thus to allow same-sex couples to marry in additional states around the country—an act that commentators at the time widely recognized would make it much more difficult for the Court to uphold state marriage bans in the future.
On top of that, the Court has since denied requests in other cases to issue orders that would have kept same-sex marriages from going forward in additional parts of the country. Justices Scalia and Thomas have both dissented from those denials, but the Chief Justice has not. He’s either voted to let same-sex marriages proceed, or at least chosen not to have any dissent publicly noted. To be sure, Justice Alito hasn’t dissented either, and it’s far more difficult to imagine him ruling in favor of marriage equality, but still this provides some reason to think the Chief Justice’s vote on this issue might not be a foregone conclusion.
Of course, that Roberts could not see his way to joining the majority in Windsor makes it difficult to understand how he might conclude that state laws prohibiting same-sex couples from marrying are unconstitutional. But it’s not impossible. He might, for example, look to the Supreme Court’s 1967 decision in Loving v. Virginia, which held that state laws banning interracial marriage were unconstitutional. In Loving, the Court described marriage as “one of the ‘basic civil rights of man,’” and noted that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” From these premises, it followed that “[t]o deny this fundamental freedom” on racial grounds violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. As numerous lower courts have recognized, same-sex marriage bans are simply the modern analogue of interracial marriage bans, and they violate the Constitution for the same reason. Seventh Circuit Judge Richard Posner, for example, wrote in an opinion striking down same-sex marriage bans in Wisconsin and Indiana that the argument that tradition supported the bans “runs head on into Loving.” The Chief Justice could well conclude the same thing in the cases the Court has just agreed to hear.
After all, Roberts has seen what a watershed decision Windsor has been, and he must surely recognize that if the Windsor majority takes the final step to recognize full marriage equality (as it should), that decision will be even more historic and undoubtedly one of the greatest legacies of the Roberts Court. Will Chief Justice Roberts be content to have such a momentous ruling be issued over his dissent, or will John Roberts want to be part of one of the greatest legacies of the Roberts Court?
We should know by the end of June.