On same-sex marriage: What is the chief justice thinking?

On same-sex marriage: What is the chief justice thinking? December 8, 2012

People who study the dynamics of this U.S. Supreme Court have, from the get-go, assumed two or three things about Chief Justice John Roberts.

First of all, he is a very cautious man, one who is very worried about the prestige of the court and the perception that it is above politics. This is not a man who wants to decide bitter, divisive, hot-button, explosive issues with 5-4 votes.

Roberts does not want to create judicial earthquakes. This is not a jurist who wants to blaze dangerous trails long before it is clear that the American public is ready to walk them. The last thing he wants is another Roe v. Wade, followed by decades of bitterness and civic strife.

Seen from this perspective, the Obamacare decision appeared to be an exception to the rules. While many conservatives called him a traitor, others noted that Roberts did that cautious thing that he does — he backed a narrow decision that made it harder to accuse the court of playing politics. After all, what is unusual about the federal government creating a new form of taxation that affects the whole population?

With that in mind, folks here inside the DC Beltway are asking a rather obvious question about the stunning news that the Supremes are going to address the nation’s hottest and most divisive issues — same-sex marriage and, perhaps, even whether sexual orientation can considered a condition leading to special, protected status for civil-rights claims, similar to race, gender, age, religion, etc. The court has, in the past, avoided a definitive statement on that issue, even in Romer v. Evans.

So the question many are asking: Why would the ever-cautious Roberts want to take on same-sex marriage at this point in the judicial game? Or look at that question from another point of view: Why would liberals on the high court want to take on this issue at this point, at the START of a second Barack Obama term? They know that their hand will only grow stronger in the next four years.

Thus, in recent weeks, most mainstream press coverage — while seeming to yearn for a clear gay-rights victory — has focused so much attention on the voices of liberal experts who were not sure that the timing was right for, well, a judicial earthquake. With all of that in mind, take a look at this Washington Post report, which begins by stating:

The Supreme Court put itself at the center of the nation’s debate over whether gay couples have the same fundamental right to marry as heterosexuals, agreeing Friday to review state and federal efforts to preserve a traditional definition of husband and wife.

In agreeing to hear cases from California and New York, the court raised the possibility of a groundbreaking constitutional decision on whether the right to marry may be limited because of sexual orientation. At the same time, the justices also will have the ability to issue narrower rulings on a subject that continues to divide the American public.

The cases will probably be heard in historic sessions at the court in late March, with decisions to come when the justices finish their work at the end of June.

As you would expect, a key part of this Post story focuses on the pivotal justice on the court — which would be Anthony M. Kennedy, a Republican who leans conservative on most economic issues and to the left on most cultural issues. Is it time for another landmark opinion that proves Kennedy is not one of THOSE Catholics?

The strategic implication is clear and has been for months: Will Roberts be able to prevent another 5-4 earthquake, with Kennedy providing more sweeping prose like the following in his Planned Parenthood v. Casey decision, the famous meaning-of-the-universe passage which he then referenced in the landmark gay-rights case Lawrence v. Texas:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Thus, the Post notes:

Central to the outcome of the term’s signature cases will be Justice Anthony M. Kennedy, who normally sides with the court’s conservatives but has written some of the court’s most important cases upholding gay rights. For instance, he wrote the Romer decision that the 9th Circuit used as the template for overturning Prop 8.

But some gay rights activists have worried about asking Kennedy and the court to move too far too quickly on what would be a sea change in the way Americans view marriage.

I was not surprised that, in this early Post story on this explosive topic, there was absolutely zero attention given to religious-liberty concerns. Those discussions will come later, when it will be all but impossible for mainstream newsrooms to avoid them — since religious doctrines and traditions were at the heart of the debates about DOMA and Proposition 8.

But here is what did surprise me about this story. Did I miss something or is one very important name — John Roberts — missing from this report? What will we learn about Roberts and his role in the court taking on this hot-button issue at this particular moment in time?

Trust me. People from coast to coast will want to know the answer to that one. Does Roberts have a plan to protect his beloved court?

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  • The conventional wisdom is that such a case will be that dreaded 5-4 with Kennedy being the deciding vote; it’s rare when Kennedy is in the minority on a case. One exception was the ACA case, where it was Roberts going against type and siding with the left-of-center quartet for a 5-4, with Kennedy on the short end with the other three conservatives.

    Given that Roberts is somewhat more culturally conservative than Kennedy, it’s likely that Kennedy will be the swing vote; that’s why Roberts likely got ignored in the WaPo piece.

  • Jerry

    Since you’re asking a political question, I’m a bit surprised at what you wrote since http://www.slate.com/articles/news_and_politics/jurisprudence/2012/09/supreme_court_gay_marriage_which_case_should_the_high_court_choose_to_review_this_term_.2.html dates from 11/29 and is hardly the only site to make that argument. As the piece mentions, the Court could easily decide that CA is a special case at the 9th circuit did and decide DOMA is unconstitutional while leaving the issue of gay marriage to the states just as earlier Courts did with racial marriage. So to frame what the Court might do in black/white terms appears to be a mistake.

    It’s also not clear to me what arguments the sides will use but no doubt there will be an desire to filea micus curiae briefs if the parties don’t directly argue the religious issue.

    Finally the question of why the Court would take up the case now might simply rest on the desire to do the right thing because of the number of challenges and lower court decisions in this area. Not everyone people do is based on political calculation, some people actually do what they believe is right in spite of the politics of the situation.

  • tmatt


    My question is journalistic in the sense that I am wondering why journalists have avoided the question of the chief justice’s role in taking on these cases at this time.

    So I will ask some questions I do not know the answer to, but that I think are some of the most important questions for journalists to answer at this point: Who agreed to take this case on at this point? Can other members of the court do this over the will of the chief justice? And, back to the post, if the LEFT side of the court wanted to do this, why NOW, early in the Obama second term?

    Read the quotes from the liberal activists, too. People are trying to figure this out. Did Roberts take this on? It’s a big question.

    • Alan

      If you expected a small percent of the undertanding of the justice system as you do religion of journalists you wouldn’t for a second think those are interesting, let alone important questions to ask.

      1. We don’t know who agreed to take it on and won’t as that information is not released publicly.
      2. Of course the court can take it whether the CJ wants to or not – if any four justices want to grant cert they grant cert
      3. First, of course we don’t know if the left side was the ones who wanted to do this now. Second, the relation to Obama’s term would almost certainly have no bearing on whether they granted cert – why would anyone but a hack think it would? Third, there are many obvious reasons to grant cert here in both cases and it may have nothing whatsoever to do with gay marriage itself – in Windsor it could be about jurisdiction and the extent to which the legislative branch can stand in for the executive in defense of a law and similarly Hollingsworth could be about standing as well.
      4. No, it isn’t a big question. It is a manufactured question by those who do narratives to sell copy, not news.

      • unapologetic catholic

        Alan is correct. The article displays a superfical and erroneous understanding of the supreme court and the court sytem overall.

  • The answer to the question about how many wanted to take on the case can be found by a simple Google search:

    “The US Supreme Court uses the rule of four to determine which cases are heard; any four justices may vote for a petition in order to grant certiorari.
    Individuals, litigants or petitioners who seek review by the Supreme Court submit a petition for a writ of certiorari, and if granted, the case comes before the them for disposition. Such was the Florida case of Gideon v. Wainwright.”

  • sari

    What is Roberts’ track record on cases pertaining to LBBT rights? Kennedy’s vote determined the outcome of at least one high-profile case.

    • BobN

      Don’t you remember, Roberts doesn’t have a track record. That’s how he got on the bench.

  • Dave

    I take the question about absence of religious-liberty coverage to be closest to the beating heart of GR. I suggest those questions will be tested as questions in defense filings: Will the State of California or the federal government think religious liberty questions germane enough, litigible enough, to rely on them in defense of Prop 8 or DOMA? Their absence would suggest the respective defendants think them too narrowly constructed to defend a general regulation. And the MSM could go on non-covering them.

    Of course the Court might pick up on those questions in its decision, in which case — whatever the outcome — the papers would need to deal with them.

  • Deacon John M. Bresnahan

    I doubt the media will look sympathetically at the religious liberty rights of people who want no part of Gay “marriage” because they have a strong faith that such is an immoral farce. …

    In fact –between Obamacare mandates and Gay “marriage– The First Amendment is on a path to becoming virtually a dead letter with the mainstream media being its enthusiastic undertakers. Look how the media became the aggressive promoters of what the Obama Admin called the “war on women” when the issue was, at least, just as much about a war on the First Amendment.

  • The WaPo article starts out with an interesting assumption: That “couples” have rights, and that it is a rights issue. I hope the SCOTUS looks patiently and deeply into these and related issues. Marriage is a particular thing with its own properties, many of which are similar to properties of other human relationships that are not marriage. Marriage is something involving a couple, but a couple is composed of two individuals, and it is individuals who are subjects of rights, not couples per se. Does a couple have a right to marry? Does anyone? Neither every opposite-sex couple nor every individual has a right to marry, for instance if they are barred by law on account of consanguinity or communicable disease. And while these cases have a clear impact on issues pertinent to religious liberty — admittedly missing in the reporting — what marriage is does not depend on what words we use to define it, but the other way around, and that is not a religious issue at all. The opposite side of the religious coin, by the way, is whether a particular religious notion of marriage — namely, one that is by design unhinged from all religious reference — being imposed upon everyone.

  • sari

    “Marriage is something involving a couple, but a couple is composed of two individuals, and it is individuals who are subjects of rights, not couples per se…The opposite side of the religious coin, by the way, is whether a particular religious notion of marriage — namely, one that is by design unhinged from all religious reference — being imposed upon everyone.”

    A couple of things. Your first statement is untrue, since corporations have legal rights which often serve to protect the individuals involved from culpability. So to say that only individuals have rights under the law is clearly untrue. And some religions, mine for instance, view a married couple as a single entity and single people as incomplete.

    Your last statement is what should be explored by the media, and that is how societal attitudes how changed over time. Does marriage represent a religious construct for most Americans? What rights does it now confer, both inside and outside the relationship? Y’all keep saying that media drives the narrative, but think about the percentage of straight couples who live together without the benefit of marriage, who, if the divorce rate is any indicator, no longer subscribe to the ideal of lifetime monogamy, who engage in pre- and extramarital sex, and who, increasingly, reap the benefits of privileges once reserved for married individuals (e.g., spousal coverage for healthcare). That is the context within which the media reports on gay marriage, and in that context, marriage (unfortunately) lacks a religious component for many, if not most, Americans.

    • Thank Sari for pointing out a need for clarification. The couple in question, that is, the one that is a subject of rights, does not come into existence until the wedding ceremony has been performed. Up until that moment, no legally recognized couple as such exists yet. We say “a couple will get married tomorrow” but the word “couple” has nuanced meanings. Legally speaking, only individuals marry.

      Also, what “marriage” means to most Americans is not the same as “what it is.”

      • sari

        “Also, what “marriage” means to most Americans is not the same as “what it is.””

        On the contrary, societal attitudes dictate societal institutions. Marriage is definitely an institution, and the specifics of its meaning vary from culture to culture. In our society, one may define marriage as a legal construct (what’s actually being contested in the courts), a religious construct, or some combination of both. It is very clear that the meaning of marriage and the obligations that the involved parties have towards one another have changed radically over the past 50-60 years, probably the result of more widespread affluence, a decline in religiosity, reliable contraception, and improved educational and employment opportunities for women. Large segments of the population no longer see marriage as an institution necessary to legitimate sex or children. It is these shifts which should be explored by the media, because they place the issue of gay marriage within the larger framework of massive societal change.

        That said, if religion is the sole reason to prohibit gay marriage, when the majority of Americans no longer subscribe to traditional attitudes towards marriage (even religious people: the highest rates of teen pregnancy and cohabitation are in the religious South), then the media should explore what it means to impose one religion’s belief system on others who do not share that belief. We tend to forget that there are a lot of religions out there, and that *they* do not agree on the specifics.

  • James

    “The last thing he wants is another Roe v. Wade, followed by decades of bitterness and civic strife.”

    I agree with this take on Roberts, however, it doesn’t give me much clarity on his likely decision in this regard, because there will likely be decades of bitterness regardless of his decision.

  • BobN

    ” The last thing he wants is another Roe v. Wade, followed by decades of bitterness and civic strife.”
    Roe v. Wade did not result in “bitterness and civic strife” all by itself. Back when it was decided, there were pro-choice people on both sides of the aisle. The decision was not immediately viewed as some attack on, well, anything. It took tens of millions of dollars to gin up the opposition to abortion as a political force manufactured and beholden to the GOP.

    • Dan Berger

      Oddly enough, BobN, you could say the same thing in reverse, about the Democratic Party becoming the strident pro-abortion voice that it has become. There used to be pro-life people on both sides of the aisle, too.

  • Dude

    It is always amusing that no one in the press asks how the liberal justices will vote. It’s just a given that they will vote reliably liberal on the key cases. Why is the press always pushing the “moderate” or “swing” judges to vote “mainstream”? These same media types never ask why liberal justices vote straight left of center w/o any possibility of them voting with the more conservative members. But if the “conservative” justices vote reliably “right of center” they are called tools of the right or slammed because they refuse to vote with their more liberal members.