Narrow or Broad? More Obergefell Speculation

Taking John Roberts’s questions and comments from oral arguments in Obergefell v. Hodges at face value, he doesn't appear ready to strike down same-sex marriage bans. From his comments about the newness of same-sex marriage to his alleged concerns that “closing the debate can close minds,” he doesn’t want to move too quickly.

Still, he faces significant pressures. One is popular opinion and historical legacy: he doesn’t want to end up, as has been said endlessly, on the wrong side of history. Yet if his vote isn’t decisive—if same-sex marriage bans will fall regardless—he may not be as concerned about appearing to stand in the way of marriage equality.

Then there’s Anthony Kennedy issue. After all, is this the Roberts Court or the Kennedy Court? Maybe Roberts isn’t that petulant. But I am. If I were Roberts, I wouldn’t let Kennedy take all the glory for himself. Not being the decisive vote could cut the other way, as well. If the Court is going to rule for same-sex marriage with or without his vote, why not have some influence over the situation, namely, the ability to assign the majority opinion—presumably to himself.

How then could the Chief Justice rule in favor of the plaintiffs? Roberts doesn’t have the same kind of liberty fetish that Kennedy has exhibited. And there is about as much of a chance that Roberts would apply a heightened Equal Protection scrutiny to gay and lesbians as a class as there is that Antonin Scalia will come out of the closet. One of the few options left to Roberts came up in a question he posed during OA:

CHIEF JUSTICE ROBERTS: I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?

Kennedy briefly raised the point in 2013 during OA for Hollingsworth, and it has come up in various lower court cases. If Roberts is looking for a way to rule for the plaintiffs while relying on existing precedent (of heightened scrutiny for sex-based classifications) and not greatly expanding areas of the law, this could be his opportunity.

Still, if Kennedy were willing to write a broader opinion and the four liberal justices signed on to his opinion, rather than the Chief’s, it would take the majority away from Roberts. Given the choice, would all the liberal justices necessarily join a broader opinion?

Maybe not. I think that Justice Ruth Bader Ginsburg would join a narrower opinion for tactical reasons. Of course, there are always (my) petulant reasons of wanting to deprive Kennedy of his ill-bestowed hero status, particularly when RBG is the true gay icon. But petulance aside, Justice Ginsburg’s history of sex/gender discrimination litigation points to her desire for cautious movement in nascent areas of the law.

In Justice Brennan: Liberal Champion, authors Seth Stern and Stephen Wermiel write, based on interviews with RBG herself, that while she advocated strict scrutiny in even the earliest sex-discrimination cases she worked on, she was disappointed that Justice Brennan adopted that toughest standard so quickly. RBG had argued for strict scrutiny in the brief for the first successful sex-discrimination case, Reed v. Reed, in 1971. Though her client won, Chief Justice Burger, writing for a unanimous Court, applied rational basis review, the most lenient standard. In the 1973 case Frontiero v. Richardson, “Ginsburg wanted to follow her approach in Reed and advocate strict scrutiny.” The attorney arguing for the plaintiff, Joseph Levin of the Southern Poverty Law Center, “preferred emphasizing a less demanding standard,” so Ginsburg wrote an amicus brief advocating strict scrutiny, but urged the Court to adopt a less stringent standard if necessary.

Justice Brennan authored the leading opinion for the Court, writing that strict scrutiny should be applied to all sex-based classifications, but he only managed to get three other votes for this view. Four justices concurred on narrower grounds. Publicly, RBG expressed delight with the Brennan’s opinion. “Privately, though, Ginsburg was disappointed Brennan had adopted the very position she had advocated. Brennan surprised her. Ginsburg thought he should have settled for more incremental progress and waited for a broader victory down the road. The outcome, Ginsburg predicted, would only make her job more difficult.”

To be sure, the parallels are not exact. There have already been three Court opinions over almost two decades expanding gay rights, and arguably, Obergefell could be the “broader victory” in gay rights litigation. The common theme, though, is that RBG understands the politics of the law. Justice Ginsburg made clear in 2013 that she thought the Court shouldn’t rule too soon on same-sex marriage. She has expressed more recently that the time is here. But she would no doubt understand the significance of the conservative Chief Justice writing the majority opinion, even if it were a narrower ruling.

Even more, it would have to be tremendously gratifying for RBG if Roberts were to make such a ruling on a sex-discrimination basis, considering that she played such a central role in establishing precedent for heightened scrutiny on sex-based classifications. And sex/gender discrimination is closely tied to homophobia, both based on notions of what is acceptable behavior, and what are acceptable desires, for people of different genders. Let’s hear it from RBG herself:

I can’t say what Justices Breyer, Sotomayor, or Kagan would do. And ultimately, I’m not fully convinced that Roberts will rule for same-sex marriage even on a narrow basis. But if he does, RBG will reign triumphant, as always.