John Roberts DOMA Skepticism: Chief Justice Wonders If Law Was Really Motivated By Homophobia

John Roberts' Curious DOMA Skepticism

WASHINGTON -- Supreme Court Chief Justice John Roberts on Wednesday reacted incredulously to the notion that members of the Senate or the U.S. president may have been motivated to pass the Defense of Marriage Act by animus or moral objection to gay and lesbian couples. It was a window into his apparent belief that the U.S. is simply not a place burdened by such things as bigotry or racism.

Roberts has in the past been dismissive of the need for voting rights protections or affirmative action, viewing the world as without the sort of racism that might require such remedies. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he offered in one case about school segregation, Parents Involved in Community Schools v. Seattle School District No. 1.

"It's a sordid business, this divvying us up by race," Roberts said in a voting rights case, League of United Latin American Citizens v. Perry.

“Things have changed in the South,” Roberts wrote four years ago in nearly striking down Section 5 of the Voting Rights Act in Northwest Austin Municipal Utility District No. 1 (Namudno) v. Holder.

During Supreme Court oral arguments over the Voting Rights Act earlier this month, Roberts argued that Northern and Southern states should be treated equally, singling out Massachusetts as having an especially troubling record on minority voting rights. The Voting Rights Act was passed to make sure that states with a history of using the law to deny African Americans the right to vote -- through literacy tests, poll taxes or law enforcement-sponsored terrorism -- would not revert to past practices.

For Roberts, there is no past -- even when the past is thoroughly documented in the Congressional Record. Solicitor General Donald Verrilli pointed out to Roberts, in an attempt to persuade him that members of Congress are capable of impure thoughts, that "this statute is not called the Federal Uniform Marriage Benefits Act; it's called the Defense of Marriage Act."

If that wasn't enough, Verrilli pointed Roberts to the legislative record. Dan Amira at New York magazine notes that the record says explicitly: "the Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality."

It goes on: "Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality."

Don't tell John Roberts.

CORRECTION: This article has been edited to correct the name of the case in the third paragraph.

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