An exchange between Chief Justice John Roberts and the lawyer representing the states defending their laws banning same-sex marriage may be an indicator that Roberts plans to vote in favor of the unions, according to
The New York Times.
Roberts raised the issue of sex discrimination to lawyer John Bursch.
"I’m not sure it's necessary to get into sexual orientation to resolve the case," Roberts 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?"
That theory, the Times points out, has never been the central argument in any of the scores of lawsuits challenging same-sex marriage bans. And while it’s not expected to be the foundation for the justices' ruling in this case, it could provide Roberts "a modest path that would not require revision of constitutional standards for discrimination based on sexual orientation," according to the Times.
George Mason University law professor Ilya Somin writes in a piece published in
The Washington Post that laws restricting marriage to opposite-sex couples are granting legal status based on gender.
"That is the very essence of sex discrimination," according to Somin, who co-authored an amicus brief in the case with Northwestern University law professor Andrew Koppelman.
Bursch responded that sex discrimination precedents aren’t germane to this case because laws banning same-sex marriage apply to both men and women equally. Neither sex is permitted to marry someone of their same gender.
The bans could be considered gender discrimination rather than anti-gay marriage, according to the Times, because "a gay man, for instance, is free to marry a lesbian in all 50 states. What same-sex marriage bans do is bar people of the same sex, gay or straight, from getting married."
The exchange was just one of many lines of questioning over the issue, and others addressed individual rights, the right to marry, and the traditional definition of marriage, according to
NPR.
During an exchange with Mary Bonauto, who argued on behalf of same-sex couples, Roberts pointed out that changing law by judicial mandate may resolve the issue, but not necessarily alter public sentiment.
"But if you prevail here, there will be no more debate," he said. "It will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts."
Should Roberts opt to rely on the gender discrimination theory when casting his vote — as some lower courts have done in striking down same-sex marriage bans — it could allow him to be part of a 6-to-3 decision, according to the Times, "maintaining some control over the court he leads and avoiding accusations from gay rights groups that he was on the wrong side of history."
Koppelman, the law professor who co-authored the amicus brief with Somin, told the Times it would be "a clean, formalistic way for the court to resolve the case."
"It could just apply existing sex discrimination law," he said.
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