DOMA and Prop 8: John Roberts Could Be Swing Vote to Overturn Both

With Tuesday's hearing on California’s Prop 8 — officially Hollingsworth v. Perry, and Wednesday’s hearing on the Defense of Marriage Act, the Supreme Court has begun a 10-week process that will profoundly effect our generation’s most salient civil rights issue. Many expect the court’s ruling to fall along partisan lines, with the four liberal justices voting yes on marriage equality, the four conservative justices voting no, and libertarian conservative Anthony Kennedy tipping the scale one way or another. Upon further examination, however, the conservatively-aligned Chief Justice John Roberts could very well surprise us all.

In 1996, a Colorado state amendment was struck down by the Supreme Court that would have prohibited all levels of state government from allowing special rights and protections for homosexuals. The case was Romer v. Evans and though he was still an appellate lawyer not yet on the bench, Roberts devoted his time pro-bono to the gay rights cause. According to those closely involved, “he was instrumental in reviewing filings and preparing oral arguments”.

Obviously, it may be a stretch to assume Roberts’ actions as a lawyer will predict his actions as a Chief Justice, but as his stance on marriage equality has been mostly unreadable since joining the court, this 17-year-old case provides us with a rare insight into the judge’s leanings.

Before speculating on what we don’t know of the court’s leader, let us first work with the information we have. First, the Colorado amendment did not pertain to marriage equality but would have prevented any legal protections for homosexuals facing discrimination. By helping to strike down a referendum-passed amendment, Roberts indicated his willingness to speak out against blatant injustice and support a client in the face of public scrutiny.

More recently, we know that Roberts is willing to break with the conservative tide, as was evident in his last-minute decision to uphold Obamacare last year.

For those of us desperately hoping the court will stand with equality, it is reassuring to know that Roberts is willing to both support a minority against a prejudiced law and dissent with his Republican supporters. Even more reassuring was the presence of Roberts’ cousin at one of the hearings, a gay rights activist and lesbian hoping to marry her partner of four years. From these observations we cannot predict with any certainty whether or not the Chief Justice will vote to strike down Prop 8 and DOMA, but, if nothing else, the facts prove that we should not blindly assume Roberts will vote conservative.

In an increasingly polarized political landscape, the Supreme Court is a strange, often-predictable feature of our democracy. Nine men and women are strategically chosen by a partisan leader and yet expected to remain uninvolved in partisan politics. If the justices are our country’s umpires — an analogy actually put forth by Roberts — then a justice being liberal or conservative is akin to an umpire having a favorite baseball team. 

As the leader of our country’s highest court, John Roberts can break from his conservative past and lead the way for open-mindedness. With a long future ahead of him on the bench representing a population with increasingly accepting views, Roberts can place himself on the right side of history and champion a historic decision for gay rights. If the Roberts' past is any indication, he just might.