The Roberts Court at 10

John Roberts and LGBT Rights –​ The Jury is Still Out | Chapter 7


Like most of the “snapshots” that are part of CAC’s yearlong “Roberts at 10” project examining Chief Justice Roberts’s first decade on the Court, this one focuses on a substantive area of the law – LGBT rights. In January, the Court agreed to review the decision by the United States Court of Appeals for the Sixth Circuit upholding state laws and constitutional amendments denying marriage equality to same-sex couples (hereafter “Obergefell”), virtually guaranteeing that this Term will be one of the most momentous in Roberts’s tenure, if not Court history. Notably, the Sixth Circuit’s decision was at odds with that of every other appellate court that has ruled on marriage equality since the Supreme Court’s 2013 decision in United States v. Windsor striking down the provision of the “Defense of Marriage Act” (“DOMA”) excluding lawfully married same-sex couples from the definition of marriage for all purposes under federal law. Given the pendency of Obergefell, this snapshot focuses on marriage equality; as it happens, this is also the one area directly involving the rights of members of the LGBT community in which the Roberts Court has already decided other cases. This snapshot will also touch on the next big issue involving LGBT rights the Roberts Court is likely to confront – the claims by opponents of equality that they have a religious liberty right to deny business, commercial or other services to same-sex couples and other members of the LGBT community, or to otherwise discriminate against them.

As discussed in greater detail below, the Roberts Court has decided two cases related to marriage equality: Windsor and Hollingsworth v. Perry, which involved a challenge to California’s Proposition 8, a state constitutional amendment that barred same-sex couples from marriage. The Court’s decision in Windsor striking down a key part of DOMA was 5-4, with Chief Justice Roberts among the dissenters. Perry was another 5-4 ruling, this time with Roberts writing the Court’s opinion. The Court decided Perry on standing grounds, leaving in place a District Court decision invalidating Proposition 8 and thus effectively paving the way for marriage equality in California.

Both Perry and Windsor have been hugely important in the efforts to achieve marriage equality nationwide. Windsor in particular has been the catalyst over the past two years for a series of decisions by lower courts across the country striking down state laws that prohibit same-sex couples from marrying. As a result, same-sex couples now enjoy the freedom to marry in nearly 40 states and the District of Columbia. This enormous progress, however, has been achieved in large measure over the dissent of Chief Justice Roberts. Had Roberts had his way in Windsor, DOMA would still be good law, same-sex couples legally married under state law would still be denied federal rights and benefits, and the recent explosion of marriage equality rulings in the lower courts would not likely have occurred, certainly not this quickly.

As important as Windsor has been, however, the Court did not decide the ultimate question of whether the Fourteenth Amendment prohibits states from denying same-sex couples the freedom to marry, a question now before the Court in Obergefell. Chief Justice Roberts took great pains in his Windsor dissent to underscore that the Court had left that question open, and signaled to the lower courts – largely unsuccessfully as it turns out – how not to take Windsor to its logical next step. Whether the cramped view of equal protection displayed in Roberts’s Windsor dissent or a more fulsome recognition of the fundamental right to marry that Roberts displayed in his confirmation hearing (discussed below) will determine his vote in Obergefell is of course unknown. Also unknown is the significance of the fact that Roberts has not dissented, at least not publicly, from the Court’s decisions this Term not to review or stay a number of lower court rulings invalidating discriminatory state marriage laws, allowing marriage equality to flourish in additional states. What is known is that Obergefell will be a defining moment – good or bad – for the Roberts Court and its application of the Fourteenth Amendment’s guarantees of liberty and equality to all persons. And if the Court rules that states may not bar same-sex couples from marriage, the decision will be one of the Roberts Court’s greatest legacies. Which side of that legacy John Roberts himself will be on remains to be seen.

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