Prediction: 6-3, DOMA and Prop 8 Both Fall; Opinion by Chief Justice Roberts

Is it improper for the Chief Justice to join a majority to control the tone and scope of the opinion?
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This week the U.S. Supreme Court takes up the topic of same-sex marriage. There are two cases one dealing with the constitutionality of the Defense of Marriage Act (DOMA); the other assessing the validity under the U.S. Constitution of the California initiative known as Prop 8. The proposition rejected the view of the state high court and declared that only a union of a man and a woman can be treated as a marriage in California.

Because of its irrational allocation of federal benefits, it is widely speculated that the Court will invalidate DOMA. The fate of Prop 8 is closer to call depending upon whether Justice Kennedy acts yet again as the swing vote joining the more progressive Justices Ginsburg, Breyer, Sotomayor and Kagan to invalidate the law. In an earlier case, Kennedy invalidated a Colorado initiative that seemingly disfavored any effort to guarantee specially the civil rights of homosexual persons. That initiative, said Justice Kennedy, amounted to animus without any basis in reason. In a subsequent case, reviewing the selective Texas prosecution of homosexual intimate behavior, Justice Kennedy found basic principles of due process to be offended by this arbitrary invasion of intimate or private activity.

It is plausible to contemplate a double victory for same-sex marriage, 5 to 4, with Justice Kennedy writing the opinion in each case. My own speculation is different and most recently informed by the role of the Chief Justice in the approval of Obamacare.

Why might the Chief Justice side with the opponents of Prop 8? Largely, as in the health care ruling,to control the scope of the majority opinion, and in particular to manifest as much sensitivity as possible toward religious freedom. It is one thing to say the discrimination under DOMA is irrational in giving estate tax exemption to traditional, but not same-sex, partners; it is quite another to conclude that all religions would then have to set aside doctrinal or scriptural interpretations contrary to homosexual behavior.

The impact of the rulings on religious bodies that have historically opposed gay marriage e.g., Catholics and Mormons would not be immediate. Yet, the prospect of being denied tax exemption as well as the deductibility of contributions for charitable work done by such churches and such religions is too plain to ignore. When a fundamentalist Christian University insisted upon separating enrolled students along racial lines in social contexts some years ago, it made no difference to the IRS or the Supreme Court in the denial of tax benefits that the University claimed to be acting on sincerely held, faith belief.

Yet race and sexual orientation are not equivalents, and the Chief Justice is unlikely to stay silent if there is any prospect that the next cases to be decided perhaps when Kennedy and/or Scalia have left the bench ( they are in their late 70s) --would seek to punish religions who dissent from affirming same-sex marriage within their congregations on doctrinal grounds. For this reason, I see the outcome in favor of same-sex marriage as 6-3,with the Chief Justice writing the opinions -- and writing them narrowly.

Formally, DOMA would fall as unnecessary federal discrimination against gay couples. Proposition 8 would tumble because California is in essence trying to be two-headed -- simultaneously saying in Prop 8 the only marriage that counts is one between a man and woman while the state family code through its generous California domestic partner law says the exact opposite.

Is it improper for the Chief Justice to join a majority to control the tone and scope of the opinion in this way? Some grousing among his colleagues is possible, but it would be unprincipled to deny the Chief Justice this role here while praising him for upholding Obamacare for similar institutional reasons. Keeping the opinion for himself is his prerogative if he is authentically in the majority. Justice Douglas once published, against all internal Court protocol, an objection to Warren Burger's assignment of the abortion case to his "Minnesota twin" Harry Blackmun, when Burger looked like he was doing so to control the shape of the opinion. In the matter of abortion, the late Chief Justice Burger's efforts failed to keep the Court out of the maelstrom that followed, but then, abortion remains deeply divisive, while national polling data shows a remarkable swing in favor of same-sex marriage.

The shape of the political landscape has been so amendable that this in itself may accord Roberts greater latitude as well. Remember, after all, that it was President Clinton who signed DOMA into law, reflecting the jumble of public opinion toward gays in the 1990s. At the time, the law was a compromise between those who see in nature and faith only a man and a woman being wed, and who loudly wanted that view to be embedded in the federal constitution, and those who thought such statement ill-fitting for the Constitution and in any event an encroachment upon state sovereignty. Historically the states have handled marital and family law questions.

DOMA did curtail the effort to amend the Constitution, and while little thought was given to the discrimination asserted for federal programs, DOMA's attempt to bolster state discrimination seemed to perplex my fellow constitutionalists. What role did Congress have in dictating how judgments or decisions made in one state should or should not be followed by another? The Constitution instructs that each State shall give the judgments of another state "full faith and credit," but what exactly did that mean? There are few real precedents. Could one state force another to accept a judgment that it found profoundly contrary to it's on public policy? No one knew the answer. No one does now.

Despite this uncertainty, Hillary Clinton, then a candidate for the presidency in the Democratic primary, supported DOMA's tip of the hat toward states rights, but opposed the discriminations drawn in federal law. Meanwhile, candidate Barack Obama opposed DOMA altogether but somewhat confusingly then favored civil unions over same-sex marriage. Today, neither President Obama nor Mrs. Clinton oppose same-sex-sex marriage.

If the Chief Justice does join Justice Kennedy and the more liberal members of the bench, he will be achieving consensus in these days of incessant division over far more prosaic budget questions. Indeed, by his own actions, the Chief Justice is meeting institutional objectives he defined for the Court from the beginning of his service. With the exception of Justice Scalia, all sides of the political spectrum are singing his praises.

John Roberts clearly enjoys and thrives at his judicial work, and the Constitution gives him effectively life tenure a fact that surely distresses the leadership of the Democratic party notwithstanding (actually because of) his judicial cleverness. The Chief's pre-appointment political allegiance being Republican, the party of Lincoln now weakly represented by the likes of Sarah Palin and Rand Paul might need to turn to him to unify more than a nine person bench?

Farfetched?? Not when very little trickles down under standard GOP thinking. Indeed, thinking of the charming, intelligent John Roberts for president must be doubly comforting to the Republican mind, rewarding as it does, the guy at the very top. Early in the 20th century, another Republican, Charles Evans Hughes, left the Court and came within a hair's breath of defeating Woodrow Wilson so, as they say, there's precedent. And as much as Democrats most surely applaud John Roberts Democratic moments, they would not very secretly keep from doing handstands were they able to reclaim the center seat sometime before the back nine of the 21st century.

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