During Tuesday’s Supreme Court arguments over same-sex “marriage,” Chief Justice John Roberts, Jr. made a point that may have revealed exactly which way he intends to vote in the case.
“I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “I mean, 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?”
According to the New York Times, that very same theory had been advanced in a brief filed by Professor Andrew Koppelman, law professor at Northwestern University, and several other scholars, urging the court to strike down same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee.
The brief made a similar argument: “If Ann is permitted to marry Bob, but Charles may not marry Bob, then Charles is being discriminated against on the basis of sex.”
Koppelman asserts that it would be a simple solution for Justice Roberts to apply existing sex discrimination law to the case. “This would be a clean, formalistic way for the court to resolve the case,” Andrew Koppelman, a law professor at Northwestern University, said in an interview. “It could just apply existing sex discrimination law.”
But John J. Bursch, a lawyer defending the same-sex marriage bans, responded to Justice Roberts’ inquiry by stating that it is not sex discrimination because the two sexes are not being treated differently, since the bans place the same burden on men and women.
Such a stance may not pass judicial muster, however.
In the law blog The Volokh Conspiracy, George Mason University law professor Ilya Somin wrote that the problem with this argument “is that, by the same reasoning, laws banning interracial marriage don’t discriminate on the basis of race.”
Justice Roberts did not pursue his theory further, but as noted by the New York Times, his question reveals that, were his intention to vote in favor of same-sex marriage, “he may have found a modest path that would not require revision of constitutional standards for discrimination based on sexual orientation.”