There are a few things here:
The Defense of Marriage Act decision overshadowed another 2013 case―Hollingsworth v. Perry―that could have determined whether states could ban same-sex marriage.
The case concerned a challenge to California’s Proposition 8, a state constitutional amendment that barred same-sex couples from marriage. But Roberts, writing for the majority, dismissed the case, holding that the challengers did not have the legal standing to bring it to the court.
The ruling left in place a lower court decision that had invalidated Proposition 8 and thus paved the way for same-sex marriage in California. Roberts’ lesbian cousin, who lives in California, sat in the courtroom during arguments in the Prop 8 case.
Few people predicted that the issue would return so quickly to the Supreme Court, but waves of lower court judges―sometimes citing Windsor―struck down the state bans.
Ariane de Vogue is not wrong. It seemed strange at the time; the Hollingsworth outcome was one of my anti-prophet moments. When the case was selected, I actually told a friend it wouldn’t make sense for the Court to take the case and then punt. And, yet, here we are.
The consideration arises because one of the more superficially demonstrative questions of Monday’s oral arguments will be the Chief Justice:
“If the Windsor majority votes in favor of marriage equality, the ruling will be one of the most momentous decisions of the Roberts court,” said Judith E. Schaeffer of the Constitutional Accountability Center, which is advocating for same-sex marriage. “Will John Roberts want to be remembered as having dissented from such a historic decision?”
The drama might seem superficial; conservative-appointed justices do not always live up to conservative political expectation. It is easy to recall Justice Souter, and on the present Court there is Justice Kennedy, who is generally sympathetic to gay rights. Nor is the Chief Justice so reliably political as conservatives might have hoped.
The question is not lost on conservatives:
The hope in conservative circles is that Roberts will see his legacy as ensuring that the issue of same-sex marriage gets decided by the people, not the courts.
“The chief surely knows that his job is to be on the right side of the Constitution,” said Edward Whelan, president of the Ethics and Public Policy Center, a group that is opposed to same-sex marriage. “Blatherings about the ‘wrong side of history’ are an appeal to intellectual cowardice.”
This is an important point. An example from history:
• One hundred nineteen years ago, the Supreme Court voted seven to one in favor of a curious standard called “separate but equal”. The idea, in Plessy v. Ferguson, was that segregation was acceptable, as long as equal accommodations were provided for nonwhites. Sixty-one years ago, the Supreme Court handed down a unanimous decision, called Brown v. Board of Education; all nine justices decided “separate but equal” was a really, really bad idea. There is no moral to the story other than the obvious, and something about civil unions goes here. Still, it is worth looking back to Plessy, and to that one dissenting vote from Justice John Harlan, and find what significance we might in the fact that the one person who had a say and knew it would not work was also a former slave owner. It only took the United States of America fifty-eight years to catch up to the slave owner.
There would seem to be a difference about how some people regard the “right” and “wrong” sides of history. As a matter of human dignity, the marriage equality argument is pretty damn sound. As a matter of constitutional law, we are past any threshold of doubt.
Remember, even Justice Thomas knows how this is going to go; the only real question is whether he decides to make any certain point. Six-three, eight one, unanimous. We might doubt there will be a five-four decision; the question of how Chief Justice Roberts will vote is legitimately in play. And while it is doubtful Justice Scalia (eight-one) will join for a unanimous decision, what will Thomas and Alito (six-three) do? Seven-two is unlikely; Thomas and Alito won’t split.
Heh. So says me.
But still, it seems there are some who would separate the right decision from the right side of history; it is a fundamental necessity of Whalen’s argument. And one thing worth noting about de Vogue’s recent examination of the Sixth Circuit decision is that the CNN report omits one of the most obvious follies, that a state can effectively recriminalize homosexuality for the purposes of defining marriageα.
So there is a reason Thomas sees the problem. And who knows, perhaps it is such a red flag that even Scalia might even have to admit there is no moralistic lever. And something goes here about monkeys and orfices, but we can probably leave that be.
Consider this report, from all of last September, by Brian Bakst of Associated Press:
People seeking clues about how soon the Supreme Court might weigh in on states’ gay marriage bans should pay close attention to the 6th Circuit Court of Appeals, Justice Ruth Bader Ginsburg told a Minnesota audience Tuesday.
Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.
She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”
This is about to happen. This is real. This is the Big Show.
Are you ready?
α Sutton, 40: “… the plaintiffs misapprehend Ohio law, wrongly assuming that Ohio would recognize as valid any heterosexual marriage that was valid in the State that sanctioned it. That is not the case. Ohio law recognizes some out-of-state marriages that could not be performed in Ohio, but not all such marriages. See, e.g., Mazzolini, 155 N.E.2d at 208 (marriage of first cousins); Hardin v. Davis, 16 Ohio Supp. 19, 20 (Ohio Ct. Com. Pl. 1945) (marriage by proxy). In Mazzolini, the most relevant precedent, the Ohip Supreme Court stated that a number of heterosexual marriages―ones that were ‘incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited’―would not be recognized in the State, even if they were valid in the jurisdiction that performed them. 155 N.E. 2d at 208-09 (noting that first-cousin marriages fell outside this rule because they were ‘not made void by explicit provision’ and ‘not incestuous’). Ohio law declares same-sex marriage contrary to the State’s public policy, placing those marriages within the longstanding exception to Ohio’s recognition rule. See Ohio Rev. Code § 3101.01(C).”
De Vogue, Ariane. “John Roberts’ big moment: Will he anger conservatives again?” CNN. 24 April 2015.
—————. “How a Cincinnati judge could shape the gay marriage case”. CNN. 24 April 2015.
Associated Press. “Gay Mentor, Belief in Dignity at Roots of Kennedy’s Views”. The New York Times. 15 April 2015.
Supreme Court of the United States. Plessy v. Ferguson. 18 May 1896.
—————. Brown v. Board of Education. 17 May 1954.
Bakst, Brian. “Ruth Bader Ginsburg: Watch 6th Circuit For SCOTUS’ Next Move On Gay Marriage”. The Huffington Post. 16 September 2015.
Sutton, J. “Opinion”. DeBoer et al. v. Snyder et al. United States Court of Appeals for the Sixth Circuit. 6 November 2014.