John Roberts and the future of marriage for gay and lesbian couples

Chief Justice John Roberts’s dramatic decision to cast the deciding vote to uphold President Obama’s Affordable Care Act was a relief to millions of uninsured Americans and a surprise to almost everyone.

Since taking the reins at the Supreme Court in 2005, Roberts had developed a reputation as perhaps the most consistently right-leaning member of the Court.

In a 2009 New Yorker profile of the Chief Justice, Jeffrey Toobin described him as a “doctrinaire conservative” who voted to uphold entrenched interests even in cases where Justice Antonin Scalia displayed more libertarian instincts.

Chief Justice John Roberts

Roberts’s ACA decision is a reminder that even judges with the most consistent ideological commitments sometimes do unexpected things. In the ACA case, it appears Roberts’s concern with the institutional standing and public perception of the Court overcame (at least in part) the Chief Justice’s own conservative predisposition.

As the Court’s final decision before its three-month summer recess, the ACA decision offers a fascinating backdrop as the Court prepares to consider two of the most important cases the LGBT community has ever brought before it.

Among the first decisions the justices will have to make when they return this October will be whether to review the decisions of two federal courts of appeals, one that overturned the so-called Defense of Marriage Act (DOMA) and the other that invalidated California’s Proposition 8.

DOMA forbids the government from providing federal spousal benefits to legally married same-sex couples, while Prop 8 amended the California Constitution to prohibit same-sex couples from marrying in that state.

Roberts’s surprise vote in the ACA case is a signal that no one can definitively count out his vote—or that of any other justice—as the legal battle for marriage equality goes forward.

The Court has not decided a major case involving government discrimination against LGBT people since Roberts took over as Chief Justice. The Roberts Court cases that have touched on LGBT issues offer few clues to how the Chief Justice might approach such a case.

Roberts refused to join the majority in a 2011 decision in which the Court held that a public college can deny funding and other benefits to a religious student group that forbids LGBT or non-Christian students to be members. But that case involved First Amendment issues that have little to do with the constitutional questions in the DOMA and Prop 8 cases.

He joined an unsigned opinion of the Court blocking the posting of videos of the Prop 8 trial on YouTube. And he authored a 2010 decision rejecting a request by the supporters of Washington’s anti-gay Referendum 71 to prevent the public release of the names of people who had signed petitions to put the measure on the ballot.

Roberts’s decisions in these cases provide almost no hints about his attitudes toward the LGBT rights issues the Court will take up in the fall.

Roberts’s conservative bent may — or at least should — cause him to consider declining to hear the Prop 8 case at all. That would let the lower court’s decision stand and pave the way for the restoration of marriage equality in California later this year.

Traditionally, the Supreme Court only accepts cases when different federal appellate courts have reached opposite conclusions on the same legal issues, or when a decision has broad national implications.

In overturning Prop 8 earlier this year, the Ninth Circuit Court of Appeals crafted a careful decision that was narrowly focused on the circumstances that led to the imposition of marriage inequality in California.

Roberts’s clear concern for the traditions and institutional stability of the Court should naturally predispose him to let that decision stand and leave for another day the broader question of whether the Constitution requires all states to grant same-sex couples the freedom to marry.

And in the DOMA challenge, which most observers believe is quite likely to be accepted by the Court this fall and decided by mid-2013, Roberts’s newly-displayed independent streak could lead him to strike down the law.

It’s very conceivable that Roberts, along with Justice Anthony Kennedy, will view DOMA’s denial of Social Security benefits and federal employee health insurance for what it is—a pointless and mean-spirited law that violates the most basic constitutional norms of equal protection.

For a Chief Justice who cares about how history will view the Supreme Court, few decisions could be easier.

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