How Justice Roberts Might Justify A Vote In Favor Of Same-Sex Marriage

04.29.2015 | Surge Wire |

Supreme Court Chief Justice John Roberts suggested he might vote in favor of same-sex marriage Tuesday, arguing the case is not about so-called gay marriage, but about sexual discrimination.

Roberts pointed out that the marriage bans don’t bar gay people from marrying, since a gay man could marry a gay woman in all 50 states, but they do ban people of the same sex from marrying each other.

“I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said, according to The New York Times. “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?”

The Supreme Court is hearing arguments this week over same-sex marriage bans, and is expected to rule the bans unconstitutional. (RELATED: Gay Marriage Case Brings Protesters To The Supreme Court)

A lawyer defending the bans responded to Roberts by arguing its not sexual discrimination because both sexes are treated equally under the ban — an argument that was used to justify interracial marriage bans. (RELATED: Alito During Gay Marriage Arguments: What About Polygamy?)

John Bursch also argued it’s sometimes “appropriate” to draw lines based on sex when it’s related to biology, pointing to a federal law upheld by the court that makes it harder for men to obtain citizenship for their children than women. The court countered that the distinction made it harder, not impossible.

Constitutional law professor Steve Vladeck said Tuesday the arguments are going as expected, and cautioned against reading too much into them. “It’s going to be close, it’s going to be divisive and it’s going to come down to [Justice Anthony] Kennedy and Roberts,” he told CNN.

Kennedy is expected to write the opinion in favor of same-sex marriage if the Court strikes down the bans.
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