Law360

Could Chief Justice John Roberts have concurred with the majority opinion in the U.S. Supreme Court's ruling in Obergefell et al. v. Hodges et al.? Probably not, but one might have initially thought so given his comments at oral arguments.

Back then, Chief Justice Roberts mused aloud whether one might avoid getting to the issue of sexual orientation at all. Rather, he said, the denial of marriage licenses might violate laws against sex discrimination. "If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?"

While interesting at the time, Chief Justice Roberts never resurrected this notion in his dissent from the majority opinion. Rather, he hops on the "definition of marriage" bandwagon and leads by arguing that the Supreme Court doesn't have the right to make a state change its definition. But, Chief Justice Roberts' argument misses the point entirely. If the Supreme Court has any rights at all, such rights surely include the ability to ensure that states don't create laws — here bans on same-sex marriage — that abridge a citizen's right to life, liberty and the pursuit of happiness.

Though the definition of "liberty" was bandied around quite bit among the dissenting justices, they conveniently ignore the "pursuit of happiness" promise of our Declaration of Independence. To them, it seems, a gay or lesbian couple's right to pursue happiness should not include the ability to enjoy the same respect, benefits and appurtenances of state sanction that make their heterosexual counterparts "happy."

Chief Justice Robert's constricted view of liberty means only that one should be free from governmental intrusion. Even if that were true under a strict constructionist theory, must Jim Obergefell have been actually arrested and jailed for trespass for trying to visit his husband in a hospital that ignored his marital union before the dissenters would concede that his "liberty" had been violated? How about taking the children away from the nonbiological parent of the other plaintiff? How much should they have been forced to endure before seeking redress? The dissent doesn't answer these questions.

While arguing that a state should be "free to expand marriage to include same-sex couples, or to retain the historic definition," Chief Justice Roberts seems to forget those states who insisted on retaining the historic definition of marriage by permitting only similar races to marry; a definition it took a ruling from the Supreme Court to change in 1967 in Loving v. Virginia.

Interracial unions were banned in an attempt to retain the vestiges of slavery laws. Then, as now, the Supreme Court took the "extraordinary step of ordering every state to license and recognize" a type of marriage that had, to that point, been unheard of.

This concept of setting right a wrong is not new.

The Supreme Court ordered all white public schools to allow black students to enroll in 1954 after Brown v. Board of Education of Topeka, even though segregation-era laws were based on the Christian proposition that God supposedly forbade racial mixing — just as God now purportedly forbids same-sex marriage. Then, as now, Supreme Court justices forced desegregation upon the nation in both the marital and academic context, even though many were unwilling to accept it.

Does it matter that all nine Supreme Court justices were in agreement?

It seems not, because thereafter a few states ignored the rulings anyway and private, segregated schools popped up all over the country. Indeed, even today the evils of racism live on. But that doesn't mean that our country's highest court shouldn't have done all it could to stop it, just as it has done to stop the discrimination Obergefell and his co-petitioners have suffered.

Chief Justice Roberts then goes on to adopt the same-sex marriage proponents' procreation argument. Because that argument has been vetted so many times before, we won't waste ink re-vetting it again. In short, he makes the basic and seemingly irrefutable point that a child's prospects are generally better off "if the mother and father stay together rather than going their separate ways." But, he misinterprets society's recognition of that parent-child bond as marriage. It is axiomatic at this juncture that society recognizes the bond between two people as marriage, not the bond between parents and their children. Whether children are ever born out of a marriage is not now and has never been the criteria for issuance of a valid marriage license.

With unwitting rhetoric, Chief Justice Roberts asks, "If you had asked a person on the street how marriage was defined, no one would ever have said, ‘Marriage is the union of a man and a woman, where the woman is subject to coverture.'" He is probably right, because back in the 18th century and earlier it was well-understood that coverture was implied in the question itself; it wasn't until the mid-19th century that such implication was challenged following the rise of feminism.

Similarly, before 1967, an implied understanding of marriage was that the two persons joined would be of the same race. In other words, what a person on the street might say about how marriage was "traditionally defined" completely depends on who you ask, and the century in which you asked them. He argues that "removing racial barriers to marriage did not change what a marriage was any more than integrating schools changed what a school was."

But that argument ignores the fact that the change affected the people who were suffering the discrimination, just as it does in Obergefell. In Brown v. Board of Education, for example, the plaintiffs weren't arguing about changing a school, they were arguing about the color of people who could attend one. The same can be said for Loving v. Virginia. It wasn't about what a marriage license was or wasn't; it was about which people were entitled to have one.

Chief Justice Roberts goes on to voice concerns about allowing "unelected federal judges to select which unenumerated rights rank as ‘fundamental,'" while ignoring the role the electorate played in putting those judges in their current position. For example, Chief Justice Roberts was given his job by former President George W. Bush, a conservative Republican. President Bush, of course, was elected by the people, presumably because of his ideology and with the understanding that he would appoint similarly minded judges to the nation's most powerful bench. President George H.W. Bush was the source of Justice Clarence Thomas' appointment to the Supreme Court, while Justice Antonin Scalia was an appointee of President Ronald Reagan. It is, in fact, the electoral will of the people that is reflected in the face of the Supreme Court. That electoral will has obviously changed, but not to Chief Justice Roberts' liking.

Then Chief Justice Roberts jumps on the polygamy bandwagon, challenging whether states may retain a two-person limit on marriage license applicants. Why not three, or four or more? But, just as with the procreation argument, this red herring adds nothing to the issue at hand. The limit on the number of participants to a marriage is, in fact, something of a tradition. Unlike other forms of contractual agreements, marriage is and always has been a contract limited to two persons. But that doesn't mean that the identity of those persons is also so limited.

And so, finally, we circle back to where we started and ask: Could Chief Justice Roberts have concurred?

At the end of his dissent he asserts that the "equal protection analysis might be different if we were confronted with a more focused challenge to the denial of certain tangible benefits," such as denial of hospital visitation rights, recognition of spousal status on official documents and ancillary legal benefits that accompany marriage.

Here was his chance to concur in part in the outcome; by focusing on the actual facts of the individual petitioners in the case (though admittedly, the case was pleaded more broadly). Could he have limited his opinion to the petitioners alone since he seems to recognize the inequity of the various facts that support their claims?

Chief Justice Roberts seems to infer as much. But, he was presented with just such a case in Windsor v. United States back in 2013, yet he did nothing to aid the majority in relieving Edith Windsor of her onerous tax burden. Instead, he dissented on procedural grounds. In Obergefell, he laments that "those more selective claims will not arise now that the court has taken the drastic step of requiring every state to license and recognize marriages between same-sex couples."

Indeed it has. And only history will reveal whether Chief Justice Roberts has relegated himself to the right side of history — or not.