Same-Sex Marriage and the Constitution, According to John Roberts

John Glover Roberts

I’m still fairly convinced that Chief Justice Roberts will write the majority opinion in Obergefell v. Hodges. Whether that opinion will actually contain a wholesale endorsement of same-sex marriage throughout the United States, I am still debating, but here are some thoughts on the issue that have been swirling in my head.

The Supreme Court, when it granted cert, revised the Questions Presented to the following: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

When I first read this, the word require leaped out at me. I thought it was disturbing. Nowhere does it show up in the Petitioners’ original questions. It could be the Court's way of ruling in the middle and saying yes to Question #2 but not Question #1. I think the Court is more clever than that, however.

The new framing begs the question, Does the Constitution really require something that may not have even remotely crossed the Framers’ mind? (Since when? “At the time that the Equal Protection Clause was adopted,” if I may turn Justice Scalia’s own words against him.)

The Chief Justice provides some answer to this during oral arguments in Hollingsworth v. Perry, the Prop 8 case: “When the institution of marriage developed historically, people didn't get around and say let's have this institution, but let's keep out homosexuals. The institution developed to serve purposes that, by their nature, didn't include homosexual couples.”

The Chief Justice understands societal evolution and progress! Shocking. Unfortunately, he made this comment in the context of, “as [the institution of marriage] pursues additional interests, you don't have to include everybody [such as homosexuals] just because some other aspects of it can be applied to them.”

This recognition of the "evolving understanding of equality" and marriage, however, is important because what same-sex couples want, according to their briefs, is to be able to enter the long-established institution of marriage. It’s not about creating a new, separate right -- like what the Court was accused of doing with the issues of privacy and abortion during the time of Roe v. Wade. I expect Roberts to understand, even appreciate, this argument-- especially in the current state of same-sex marriage being legal in 36 states, an unprecedented development that he played a major hand in by denying to stay the petitions in October (His vote is not on the record, but it’s virtually undisputed).

Cunning.

Obergefell’s Questions Presented also shift the focus from states violating the Fourteenth Amendment into the Fourteenth Amendment requiring -- aka mandating -- states to license SSM. The 14th Amendment is part of the Federal Constitution, and Roberts believes that this is a federalism issue (something I wrote about here). The last time there was a high-profile case before the Supreme Court in which the Federal government required something from states and citizens  (individual health insurance), Roberts famously approached it with “full measure of deference” and allowed the government to prevail.

For same-sex marriage, it's similar. We know he cares about the position of the United States. The current framing of Obergefell already came out of his own mouth two years ago, in the same Hollingsworth oral arguments: “Is it the position of the United States that same-sex marriage is not required throughout the country?”

Of course, at the time, the government position was: “We are not -- we are not taking the position that it is required throughout the country.” Now, in their amicus brief supporting the petitioners in Obergefell, the government has categorically declared that same-sex marriage bans “cannot be reconciled with the fundamental constitutional guarantee of “equal protection of the laws.”

Will Roberts give the government the same “large measure of respect” as he did in the Obamacare case?

Why not? Look at this paragraph in his majority opinion: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” (Emphasis added). To me, this is classic Roberts giving himself a ticket to rule in favor of an issue that goes against his own beliefs or jurisprudence.

The Constitution permits same-sex marriage, but does it require its licensing across the United States?

Based on the Chief’s dissent in Windsor, and his subsequent vote not to hear the cases in October, it could very well be a Yes. In Windsor, he said: “Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.” With about 3/4 of states now licensing same-sex marriages, those interests in uniformity and stability now weigh in favor of same-sex marriage.

When it publicly agreed to hear the Obergefell cases in January 16, the Chief Justice and the Supreme Court effectively answered its own questions. Quietly revising the questions behind closed doors -- with its appeal of anonymity -- was very clever that way. When his majority opinion comes out in June, like what he did in Obamacare, John Glover Roberts just needs to paint himself as the neutral, objective umpire he’d always claimed to be.