Chief Justice John Roberts is the master of the long game. During his tenure, the conservative majority on the U.S. Supreme Court has managed to upend voting rights, affirmative action, and campaign finance protections
as well as grant corporations religious exercise rights as a means of dodging government regulations like the birth control benefit in the Affordable Care Act (ACA). Even when he sided with the Court’s liberals in upholding the ACA, he managed to craft a majority opinion that opened the door to state insurrection on Medicaid expansion and the never-ending political campaign against health-care reform.
So if anyone is going to offer the “poison pill” to a decision meant to usher in marriage equality, it’s going to be John Roberts.
In his dissent in United States v. Windsor, last summer’s decision that struck a federal law defining marriage as only between one man and one woman, Roberts went to great lengths to explain that, as far as he was concerned, the outcome of that case depended entirely on the fact that the Defense of Marriage Act (DOMA) improperly placed the federal government in the role of regulating a matter traditionally left to the states. “But while I disagree with the result to which the majority’s analysis leads it in this case,” Roberts wrote in Windsor, “I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their ‘historic and essential authority to define the marital relation,’ may continue to utilize the traditional definition of marriage.”
In other words, Windsor wasn’t a victory for gay rights so much as for federalism.
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With that limitation in place, Roberts went on to warn the majority in Windsor—but most importantly Justice Anthony Kennedy—that deciding Windsor on principles of federalism was a proposition that could come back to haunt him later. “Thus, while ‘[t]he State’s power in defining the marital relation is of central relevance’ to the majority’s decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.”
Fast forward through a summer of marriage equality litigation over statewide same-sex marriage bans to Wednesday, when U.S. District Judge Martin Feldman earned the dubious distinction of becoming the first federal judge to rule against marriage equality since Windsor. “This national same-sex marriage struggle animates a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition,” opens Feldman’s opinion. This is not a case about equal rights, argues Feldman, but of balancing state power and democracy over “lifestyle choices.”
The defendants maintain that marriage is a legitimate concern of state law and policy. That it may be rightly regulated because of what for centuries has been understood to be its role. Not so say plaintiffs, who vigorously submit if two people wish to enter into a bond of commitment and care and have that bond recognized by law as a marriage, they should be free to do so, and their choice should be recognized by law as a marriage; never mind the historic authority of the state or the democratic process.
Conservative jurists defending marriage equality bans take great offense at the suggestion that these bans are anything other than legalized discrimination, but as Feldman proves in the opening paragraph of his opinion, these are indefensible positions. In his dissent in Windsor, Roberts scoffed at suggestions that DOMA was the product of anti-gay bias or bigotry much the same way he scoffed at suggestions that racism still exists or that women face on-the-job harassment: “At least without some more convincing evidence that [DOMA]’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.” A few short paragraphs later, Roberts leaned on Kennedy’s words from the Windsor opinion to, again, reinforce the state
s’ interest in regulating “the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’”
Similarly, even after essentially yelling at marriage equality advocates to get off his lawn, Feldman bristles at the suggestion that those fighting in favor of “traditional marriage” do so because of anti-gay animus. “The Court also hesitates with the notion that this state’s choice could only be inspired by hate and intolerance,” Feldman wrote. “Louisiana unquestionably respected ‘a statewide deliberative process that allowed its citizens to discuss and weigh arguments for and against same-sex marriage.’ All sides for and against grappled with this solemn issue. The Court declines to assign an illicit motive on the basis of this record.”
Feldman’s insistence here that the presence of a democratic process is the same thing as the absence of structural bias is right out of the faux objectivism put forward by Roberts in his Windsor defense and in nearly every other civil rights issue that has come before his Court. In fact, much of Feldman’s opinion models Roberts’ in tone and tenor, which is not a surprise given that Feldman is a Reagan appointee and Roberts is a product of the Reagan-era Department of Justice. In other words, both are cultural conservatives, but more reserved and less combative than another product of the Reagan culture wars, Justice Antonin Scalia.
But, as Garrett Epps points out in The Atlantic, it’s also an argument designed to capture the attention of Justice Kennedy. When concluding that Louisiana’s voters were within their power to vote away the rights of some, Feldman relies on Kennedy’s opinion in Schuette v. BAMN, the decision that upheld a Michigan voter initiative banning affirmative action policies at state universities. “This case shares striking similarities with Schuette,” Feldman wrote. “Just as in Schuette, this case involves ‘[d]eliberative debate on sensitive issues [that] all too often may shade into rancor.’ And so just like the Supreme Court very recently held, this Court agrees ‘that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.’”
Feldman borrows Roberts’ technique here of addressing Kennedy through the justice’s own words to offer a clear challenge: Can Justice Kennedy explain how if voters could pass racial preference laws that withstand court scrutiny, why not marriage preference laws as well?
When the Roberts Court’s session begins again in October it will have pending before it three petitions asking it to answer whether or not state-level same-sex marriage bans are unconstitutional, and there’s every reason to believe the Court will take up one, if not all, of those requests. That means Justice Kennedy is going to have to reconcile his logic in Windsor with his logic in Schuette and answer that question, a proposition that Justice Roberts may be banking on not being possible.