How Will John Roberts Rule on Gay-Marriage Cases?

With challenges to the constitutionality of the Defense of Marriage Act ("DOMA") headed to the U. S. Supreme Court now headed to the U. S. Supreme Court, it is only natural that speculation about how Chief Justice John Roberts will rule on marriage equality and DOMA's blatant discrimination against gays and lesbians.  Especially since Roberts is currently a pariah among many in the Kool-Aid drinking GOP base because of his vote on what the loons derisively call Obamacare."  In the event Roberts ends up voting to strike down DOMA, it's a pretty safe bet that some in the anti-gay hate groups that masquerade as "family values" organization may well have an aneurysm.  In a piece in The New Yorker, Richard Socarides ponders how John Roberts may vote on DOMA and/or Proposition 8.  Here are highlights:

Often the first question the lawyers Ted Olson and David Boies get when they talk about their effort to overturn California’s anti-gay Proposition 8 is this: Are there five votes on the Supreme Court for their case?

After the customary and cautionary language about never being able to predict the Supreme Court’s result, Olson and Boies often answer the question by going a step further. They say that they are not giving up on any of the Justices. Boies then tells a joke—he says that he and Olson have a deal: Olson will be responsible for getting the votes he got in Bush v. Gore, and Boies will be responsible for the ones he got. Everybody laughs. (One example is here.) So does the Supreme Court’s health-care ruling make the joke more or less funny for conservatives?

There are two big gay-rights cases heading for the Court. (I’ve posted about them.) In addition to the Olson-Boies Proposition 8 case, there is the Massachusetts case known as Gill v. Office of Personnel Management, which challenges the constitutionality of the federal Defense of Marriage Act (DOMA).  .   .   .   the Justice Department also asked the Court to consider the Gill case and another DOMA case, Golinski v. O.P.M., even before it was decided by the Ninth Circuit. The Court will certainly take the Marriage Act case and decide it during its next term. But I also think they will not resist the temptation to take the Proposition 8 case, even though they may later agree to handle it narrowly.

The Court will not have much flexibility in the DOMA cases. There is only one question presented: Is DOMA constitutional? It will have to be answered yes or no. In the Proposition 8 case, there are more options. The Court might restore same-sex marriage rights in California without finding a nationwide constitutionally based right to marriage equality. Even some advocates think that would be the best and most politically sustainable result. But there is little doubt that if the Court rules in favor of gay rights the decision will be significant, perhaps even historic. Most people assume that the fifth and deciding vote belongs to Justice Anthony Kennedy, who wrote the Court’s majority opinions in its two most recent big gay-rights rulings, Romer v. Evans (1996) and Lawrence v. Texas (2003).

Chief Justice John Roberts joined the Court in 2005, two years after Lawrence was decided, after only a short stint on the D.C. Circuit Court of Appeals. None of the gay-rights-related cases that have come before him as a judge give any significant clues as to how he might rule on the weighty constitutional issues he will face next term. Interestingly, as the Los Angeles Times reported in 2005, before he was on the bench he “worked behind the scenes for gay rights activists” in the Romer case who were represented at the time by his law firm, Hogan and Hartson.

But now, in these marquee gay-rights cases facing the Court next term—as American public opinion, especially among young people, shifts rapidly towards greater equality—Roberts may find the very kind of “legacy” issues around which he has shown a willingness to break with his more conservatives colleagues. Put another way, these cases will help define what freedom and equality look like in America, perhaps for decades. Will Roberts want to be on the losing side of history?

Olson, writing in Time about the health-care ruling  .   .  .  .  has been hypothesizing for some time that the influences on Chief Justice Roberts in the health-care case might also lead him to rule in favor of the rights of gay Americans to full equality, including marriage.

Fundamentally, we see that Roberts thinks of himself not just as another Justice of the Court but as its Chief Justice and, as such, as the primary keeper of its legacy.   .   .   .   If they decide against the rights of gay people next term, within a decade or so this issue is going to be right back before the Court and Justice Roberts will likely still be Chief.   .   .   .   .   If he rules against gay rights now, how is Roberts going to feel about the overturning of this precedent later—or having it overturned while he is still on the Court as Chief? That’s not to say public opinion is the only factor here. But the Supreme Court has previously held that marriage is a fundamental right, and sexual orientation, especially when viewed from today’s perspective, meets all the requirements for heightened constitutional scrutiny.

It’s never an issue of the Court looking to public opinion for the result—but they do look to the direction the country is headed, and at its normative values, to see if the result will be accepted by the governed. This is the gay-rights moment, just as the sixties was the civil-rights moment (although there are places, like the South, where public opinion is contrary, as it was in those landmark civil-rights cases).

The question is whether a decade or more from now Chief Justice Roberts really wants to be leading a Court that embodies the last vestiges of anti-gay discrimination in the country, even as fewer and fewer Americans oppose equality. A ruling in favor of gay equality is possible, perhaps even likely, with or without the swing vote of Justice Kennedy. After the health-care decision, Ted Olson’s belief that he can get John Roberts’s vote for same-sex marriage is no joke.

Not addressed in the column is the speculation by at least some in Washington, D. C. (I'm not going to name names at this point) - which I have heard personally - that Roberts have significant reasons to be gay friendly.  Again, should Roberts end up supporting marriage equality, the conniption fits on the far right will be most entertaining to watch to say the least.  It would certainly be beyond pleasing to see a GOP appointee vote against the Bible beaters and their puppets in the GOP.