Is chief justice a possible vote for gay-marriage rights?
ABA file photo of Chief Justice John Roberts by Kathy Anderson.
Speculation about which Supreme Court justices would vote to strike down bans on gay-marriage often centers on the so-called “Windsor five” who voted to strike down the Defense of Marriage Act in United States v. Windsor.
In that 2013 case, Justice Anthony M. Kennedy joined with the court’s four liberals to overturn the law’s ban on federal benefits to same-sex married couples. But Chief Justice John G. Roberts Jr. might also provide a vote for marriage equality, according to a Slate column by Mark Joseph Stern.
Roberts wrote a separate dissent in Windsor that said DOMA promoted uniformity and stability. Roberts said he would vote to uphold the law, “without some more convincing evidence that the act’s principal purpose was to codify malice, and that it furthered no legitimate government interests.”
That “widely overlooked passage” hints that Roberts would strike down a law that more obviously codified malice, according to the Slate article.
“What about a state-level ban with an undisputable track record of raw animosity?” Slate asks. “Many of these bans were passed by referendum, leading anti-gay groups to sponsor astonishingly vicious ads slandering gays as perverts and pedophiles. Some bans were passed by state legislators, who often spoke of gays as immoral aberrations who deserve to be disadvantaged by the law. Surveying this irrefutable history of hatred, Roberts could vote to strike down state bans for exhibiting unconstitutional ‘malice’—without reversing his position in Windsor.”
Even if Roberts doesn’t want to join a decision finding all gay-marriage bans to be unconstitutional, he could write an opinion concurring in the judgment that a particular state’s ban must be struck down because of evidence of malice, Slate says. Such a vote would allow Roberts to avoid “a vote against marriage equality [that] will stand out as an eternal smear on his record.” Slate says.
Related articles:
ABAJournal.com: “9th Circuit strikes down same-sex marriage bans in Nevada and Idaho; Kennedy issues a stay”
ABAJournal.com: “SCOTUS won’t hear same-sex marriage cases, clearing the way for gay marriage in 11 more states”
