There is a natural temptation on the part of Court-watchers to overread the import of snippets of oral argument. Maybe I’ll be proven wrong—in which case my considerable respect for Chief Justice Roberts will disappear—but Adam Liptak’s article in yesterday’s New York Times strikes me as a stark example of overreading. Liptak’s article focuses on Roberts’s question whether state laws that define marriage as the union of a man and a woman present “a straightforward question of sexual discrimination” (rather than discrimination based on sexual orientation). Here’s how the article begins:
In a telling moment at Tuesday’s Supreme Court arguments over same-sex marriage, Chief Justice John G. Roberts Jr. suggested that he may have found a way to cast a vote in favor of the gay and lesbian couples in the case.
Note that Liptak assumes that Roberts, rather than carrying out his duty to dispassionately discern the meaning of the Constitution, wants to try to “f[ind] a way to cast a vote in favor of” one side in the dispute. Indeed, he is so confident in his assumption that he declares Roberts’s question a “telling moment.” How very odd.
Liptak speculates a few sentences later that Roberts might be motivated by the desire to “maintain[] some control over the court he leads and avoid[] accusations from gay rights groups that he was on the wrong side of history.” But the first suggested motivation, grubby as it is, would be unlikely to play out well in practice. If, as Liptak assumes, there are five justices ready to invent a constitutional right to same-sex marriage, what possible “control” over such a decision could Roberts reasonably expect to obtain by siding with the five? Liptak suggests that if Roberts were able to orchestrate a ruling on sex-discrimination grounds, he would have “found a modest path that would not require revision of constitutional standards for discrimination based on sexual orientation.” But as Roberts’s other comments during oral argument make clear, there would be nothing “modest” about a ruling that would strike down state marriage laws. Nor is there any reason to think that such a ruling would forestall the other five justices, whether in this case or down the road, from revising the constitutional standards for discrimination based on sexual orientation.
Liptak’s second suggested motivation ought to be deeply insulting. Set aside the inanity of the “wrong side of history” charge. If Roberts were to decide a case based on a desire to avoid accusations from anyone, he would be violating his constitutional oath.
Further, the sex-discrimination argument that Liptak thinks Roberts might embrace is badly confused and incompatible with Roberts’s vaunted commitment to judicial restraint. If Roberts were to accept that argument, he would betray that commitment to judicial restraint, and he would vindicate the harshest of criticisms that some conservatives have leveled at him.
The sexual complementarity of male and female inheres in what marriage has perennially been understood to be and in the core reason for its existence. (As Roberts stated at oral argument, “The fundamental core of the institution [of marriage] is the opposite-sex relationship.”) It is true that laws that define marriage as the union of a man and a woman draw lines based on sex, not on sexual orientation. That is a powerful argument against the claim that state marriage laws discriminate on the basis of sexual orientation. But it is not a good argument for the claim that such laws “discriminate” on the basis of sex. To label as “discrimination” the line-drawing that is intrinsic to marriage (as it’s been understood for millennia) is to engage in word games that, as Sherif Girgis explains, would confound the reasons why discriminatory classifications do receive heightened scrutiny. One might with equal obtuseness allege that it is sex discrimination to have only female patients in a clinical trial for a drug for ovarian cancer.
Addendum: In the post-argument flurry, I somehow missed this fine Bench Memos post by Roger Clegg, which concludes:
And my point is that, if you have a constitutional theory that says the Constitution contains a requirement that the government must allow men to marry each other and women to marry each other, then there’s something wrong with your constitutional theory. It ain’t in there.
So many folks get so spun up by their own models that they can’t see straight.