Joe Loves Tom and Sue: Why Roberts Could Be Writing the Same-Sex Marriage Decision

By Steve Klepper (Twitter: @MDAppeal)

[Update, June 26, 2015: Boy was I wrong…]
At the MSBA’s annual Supreme Court panel, Irv Gornstein mentioned that, during April arguments in Obergefell v. Hodges, Chief Justice Roberts asked whether bans on same-sex marriage might unconstitutionally discriminate on the basis of sex. Gornstein thought nothing would come of that questioning, because Roberts didn’t follow up on it. But don’t shocked if on June 29 we learn that Roberts is announcing the opinion for the Court, striking down the four states’ bans based on sex discrimination. If Roberts voted with the majority at the justices’ conference, it was his right to choose which justice would write the opinion. Perhaps his heart wouldn’t be in it, but I see three reasons Roberts might vote with the majority and assign the opinion to himself.

First, Roberts is keenly aware of his place in history. It doesn’t take a weatherman to know which way the winds are blowing. To be sure, Roberts’ dissent in United States v. Windsor is a strong indication that he doesn’t like the idea of the Supreme Court intruding on state definitions of marriage. Still, Roberts must know that, justifiedly or not, history is likely to take a harsh view of the dissenters.

Second, as also noted at the MSBA panel, Roberts is a judicial minimalist. With a few notable exceptions, Roberts prefers to resolve cases on what it sees as the narrowest grounds possible, drawing the most votes as possible. (Elonis v. United States is but the latest example.) Roberts’ questioning indicates that he sees sex discrimination as the narrowest argument for the petitioners. He asked the states’ counsel “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?”

Third, on a related point, Roberts may have a particular reason to desire a narrow ruling in Obergefell. Conservatives have long feared that striking down state same-sex-marriage bans would endanger bans on polygamy. Justice Scalia has said as much in his dissents in Windsor and Lawrence v. Texas. In Obergefell, a 15-state amicus brief, citing the pending appeal of a ruling striking down Utah’s criminalization of polygamy, argued that a ruling for the petitioners would “inevitably override legitimate policy differences in other areas, such as how [marriage] is to be limited based on age, consanguinity, and number of participants.”

During argument in Obergefell, Justice Alito asked whether a group consisting of two men and two women – all highly educated consenting adults – would be entitled to a marriage license under the petitioners’ arguments. Justices Scalia and Alito both were skeptical of the petitioners’ answer. Roberts said nothing, but it’s doubtful that he is as confident as the petitioners’ counsel that the four-person hypothetical was easily distinguished.

Roberts’ love-triangle hypothetical invites a follow-up question: “What if Joe loves Tom and Sue?” It’s easy to imagine Roberts fearing that Justice Kennedy’s likely rationale – a dignity-based argument – provides an insufficiently clear answer. But a sex-discrimination rationale provides an easy answer: there is no sex-discrimination if the state tells Tom, Joe, and Sue that only a two-person marriage is legal.

And, since last week’s MSBA panel, we now have one more reason to believe that the Supreme Court will take the narrow path in Obergefell. Ann Althouse has observed that the justices’ plurality, concurrence, and dissent in Kerry v. Din together strongly indicate that Obergefell will be decided based on equal protection grounds, not a fundamental liberty interest in marriage.

I don’t think it’s so easy to write off Roberts’ fleeting questioning regarding sex discrimination. If there are five other votes to reverse in Obergefell, Roberts could sprinkle some sand on the (real or perceived) slippery slope by joining the majority, assigning the opinion to himself, and striking down the bans on sex-discrimination grounds.

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