DOMA: Why John Roberts Might Be the Swing Vote For Marriage Equality

It’s a nail-biting spring for LGBT activists, as cases on California's Proposition 8 and the federal Defense of Marriage Act will be heard before the Supreme Court this March. Around the country, advocates are concerned about the implications of the cases for the LGBT movement. Yet in spite of the more conservative position of the court, what has made many LGBT leaders enthusiastic about the cases’ is conservative Chief Justice John Roberts’ own record.

The American people have changed their minds about same-sex marriage in recent years. Barack Obama’s announcement last year that he had reconsidered the issue of marriage equality was a barometer for a shifting national mood. According to the Pew Public Forum for the People and the Press in 2012, 47% of Americans support allowing LGBT Americans to marry legally, the first time there was as much support as there was opposition of same-sex couples. However, 31 of 50 states have passed constitutional amendments banning same-sex marriage, leaving no doubt that bringing LGBT rights to the Supreme Court could go either way for those passionate about marriage equality.

Roberts made conservatives' blood pressure spike when his unexpected tie-breaking vote upheld the constitutionality of the Obamacare last summer. Of course, the health care ruling may be more anathema to Roberts’ future deviation from the votes of the conservatives on the court than a predictor of more moderate rulings. Embittered conservatives have already made Roberts the target of vitriolic attacks, calling him everything from a “traitor” to a judge who is “run by the American media.” This might keep Roberts from more liberal votes on hot-button issue like LGBT rights. Yet Roberts’s career seems to reveal more about his potential voting on DOMA than any potential fear of conservative backlash. 

Long before John Roberts was even considered as a Supreme Court Justice appointee, he donated his time pro bono to work on a little known sodomy case, Romer v. Evans. Roberts worked to convince the high court that an amendment to the Colorado constitution criminalizing homosexuality was unconstitutional. The case, which set legal precedent for the LGBT rights landmark Lawrence v. Texas, was one of the most important legal victories for LGBT people up to that moment. While Roberts’ volunteer work for the case is not necessarily indicative of a secret zeal for protecting LGBT rights, Roberts may, in spite of his typically conservative ideology, be willing to break with his usual counterparts Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. Roberts' legal work on the is especially interested considering the amicus brief filed by Prop 8 proponents asking the Supreme Court to further examine the constitutionality of Romer v. Evans in light of its similarity to the Prop 8 case. 

Will Roberts bow to political pressure from those on the right in his analysis of the Constitution’s application to LGBT rights? Or will he uphold the human rights implicit in the discussion for marriage equality for all couples, regardless of gender? Either way, his record working on previous LGBT legal battles will be discussed at length by and the pivotal for much speculation on the fate of the cases. Roberts’ vote on Prop 8 will be essential for the future of LGBT rights around the country, just as his support in Romer v. Evans remains a crucial part of the battle for LGBT civil rights.