Chief Justice Roberts is the unintentional hero of marriage equality

by Russell's Rants

Originally published June 27, 2013

de77cfef29d332e909fdfcccd055eea8Associate Justice Anthony Kennedy has gotten wide recognition for providing the crucial fifth vote in the Supreme Court yesterday to strike down the Defense of Marriage Act. But it was the Chief Justice, John G. Roberts, Jr., who formed an odd coalition with both liberal and conservative justices in Hollingsworth v. Perry to find that the appellants lacked standing – thus leaving intact the District Court ruling invalidating California’s Proposition 8.

While DOMA’s demise will have broad impact at the federal level, it will not result in one more same-sex wedding. Proposition 8’s demise, however, in the most populous state in the union, is going to be huge. California Governor Jerry Brown and Attorney General Kamala Harris are already instructing the state’s 58 county clerks to get ready to issue marriage licenses to gay couples as soon as the Ninth Circuit’s stay is lifted, which is expected next month.

Justice Roberts’ own cousin, Jean Podrasky, is in a long term lesbian relationship and was present in the Supreme Court when it heard oral argument on the gay marriage cases back in March. She and her partner live in California and now intend marry. Interviewed last night, Ms. Podrasky explained that while she intellectually appreciates DOMA being struck down (thank you, Justice Kennedy), she was really most excited about being able to get married because Proposition 8 is no more (thank, cuz!).

Because Perry was decided on standing, we don’t really know how Justice Kennedy would have voted if the court had reached the merits of Proposition 8. But it wasn’t for his lack of trying. Kennedy’s dissent explained that he thought the proponents of Proposition 8 did, in fact, have standing to defend the law and prosecute the appeal. Justices Thomas, Alito and Sotomayor joined him in that dissent. It strains credulity to believe that if Kennedy had wanted to reach the merits and strike down Proposition 8 as unconstitutional that the four liberal justices would not have joined him – forming the same 5-4 majority as in U.S. v. Windsor, the DOMA case.

Alternatively, if Kennedy had voted to reach the merits and to uphold the constitutionality of Proposition 8, then I’m guessing he would have lost Sotomayor. But given Scalia’s often stated animus toward gays and results-driven jurisprudence, it strains credulity to believe that he would not have signed on to a merits-based decision upholding Proposition 8.

This means that the true hold-out on Proposition 8 was the Chief Justice himself, insisting on a strict procedural view of Article III’s standing requirements (to which Scalia later attached himself when he figured he wouldn’t be able to get to the merits).

This would not be the first time that John Roberts has taken a somewhat quirky position that saved the day – he being the switch in time that saved the Affordable Care Act from doom just last session.

Those following the Supreme Court’s treatment of marriage equality have long thought that Kennedy was leery finding a constitutional right to marry that would bind all 50 states. When framed as an issue of states’ right, Kennedy’s libertarianism and fidelity to principles of federalism allowed him to go as far as finding DOMA to be a federal intrusion into the traditional role of the states in defining marriage. The last thing he would want to do, then, is have the Supreme Court redefine marriage from only recognizing opposite gender marriages to mandating that the states perform same-sex marriages.

Yes, Kennedy was the author of Romer v. Evans, which struck down Colorado’s odious Amendment 2 that had disenfranchised its gay citizens, and exactly ten years ago to the day of yesterday’s rulings of Lawrence v Texas, which outlawed anti-sodomy laws nationwide (essentially making it legal to be gay in America). And, of course, of U.S. v. Windsor itself, using sweeping language to find Section 3 of DOMA that restrictively defined marriage to a violation of the liberty and due process clause of the Fifth and Fourteenth Amendments. But a constitutional right to gay marriage equality was just too far for him.

Can you imagine how bitter-sweet a victory yesterday on DOMA would have been without the accompanying abolition of Proposition 8? If so, there is really only one guy to thank, along with his cousin: the Chief Justice.