How the leading judge of the United States Supreme Court can definitively
push conservatives to the right side of history
With the United States Supreme Court hearing oral arguments this week
regarding the Defense of Marriage Act (DOMA) prohibiting federal
recognition of any same-sex marriages, talk has turned to Associate Justice
Anthony Kennedy and speculation on how the Reagan-appointed judge will
side. But the man who can truly make history when the court renders its
opinion on both cases later this summer isn't Justice Kennedy; it's Chief
Justice John Roberts.
A Roberts ruling in favor of overturning the Defense of Marriage Act would
be a victory for federalism, a triumph for the gay equal rights movement,
and a historic moment for the Court that could well mark the moment that
conservative opposition to same-sex marriage crumbled to dust.
Unlike the Proposition 8 case, which directly affects the right of same-sex
couples to enter into marriage (and the judicial complexities inherent to
that debate), DOMA is less a case about marriage and more a case about the
overreach of the federal government -- the very type of overreach the
conservative wing of the Supreme Court has historically checked. Right now
nine states and the District of Columbia recognize marriages between
same-sex couples, but DOMA prevents those couples from engaging in the full
protections, benefits, and responsibilities afforded their straight
counterparts on the federal level -- simply because of their sexuality. This
isn't just wrong; it's unconstitutional as a direct violation of the Tenth
The very case that the Supreme Court will be hearing on DOMA -- Windsor v.
United States -- comes before the Court following a ruling that stated DOMA
was a violation of the Equal Protection clause of the Fourteenth Amendment.
In invoking the Equal Protection clause in his 2007 ruling on the PICS v.
Seattle case, Justice Roberts stated, "The way to stop discrimination on
the basis of race is to stop discriminating on the basis of race." In what
is being called the civil rights fight of our era, it could just as easily
be said that the way to stop discrimination on the basis of sexual
orientation is to stop discriminating on the basis of sexual orientation.
The DOMA case is not Roberts' first interaction with a case involving equal
rights for gay Americans. In 1996 Roberts provided pro bono assistance to
the landmark LGBT rights case Romer v. Evans that ultimately led to a
ruling by the Supreme Court that Colorado's Amendment 2, which prohibited
all branches of state government from adopting law or policy prohibiting
discrimination based on sexual orientation, was unconstitutional.
Assuming Justice Kennedy sides with Roberts in favor of overturning DOMA,
the Court's decision on this issue would likely be 6-3, taking the wind out
of the argument that the only reason DOMA was overturned was because
Kennedy flipped to the liberal side of the court. Simply put: The ruling
would have more strength -- and it would also provide cover to Republicans in
Congress on the federal level to declare that there was a conservative
ruling by the court on the constitutionality of DOMA, and it should be
Roberts is an adoptive father. Supreme Court justices are always fond of
stating their "objectivity," but if all the Court's decisions were
"objective" they would all be unanimous. Justices on the Supreme Court
don't live in isolation, and Roberts could be uniquely positioned to
personally recognize the importance of marriage in providing stability to
gay families -- especially those gay families raising adopted children.
Finally, issuing an opinion overturning DOMA would place Roberts in the
pantheon of conservative civil rights champions. As a man appointed to the
Court by President George W. Bush -- the very president who used a Federal
Marriage Amendment as a wedge issue in his 2004 reelection campaign -- a
Roberts opinion supporting the overturning of DOMA would not only ensure
his legacy as a civil rights hero, but return the mantle of equality to the
conservative movement and brand his Court in history as a protector of the
rights of all Americans.
Gregory T. Angelo is the Executive Director of Log Cabin Republicans.
Visit http://www.logcabin.org for more information.