U.S. Supreme Court

Did Roberts' sex-bias question signal a possible vote to support gay marriage?

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Chief Justice John G. Roberts Jr. used a hypothetical from an amicus brief supporting same-sex marriage in oral arguments on Tuesday, signaling a way he could use sex discrimination law to strike down bans on gay marriage, according to a law professor who signed the brief.

The New York Times highlights the question from Roberts. “I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “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?”

The issue was raised in a law professors’ amicus brief, according to a law professor who signed it, Andrew Koppelman of Northwestern University. “This would be a clean, formalistic way for the court to resolve the case,” Koppelman told the Times. “It could just apply existing sex discrimination law.”

The sex bias theory is unlikely to be the central rationale if the Supreme Court strikes down gay-marriage bans, the New York Times says. And Roberts himself didn’t pursue the idea after his initial question.

“But if he wants to vote in favor of same-sex marriage,” the Times says, “he may have found a modest path that would not require revision of constitutional standards for discrimination based on sexual orientation.”

The consolidated cases before the court are known as Obergefell v. Hodges.

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