Such an opinion by Chief Justice Roberts would not only strengthen the decision but put into the Supreme Court's toolbox the importance of viewing discrimination against someone on the basis of her sexual orientation as simple sex discrimination. This would help bring "heightened scrutiny" into consideration in future gay-rights cases.
There are consequences to waiting. Couples are denied their rights, which has ramifications from child custody to driver licenses to death certificates. Look at what the status quo means: Gay couples separated in hospitals. Losing their life savings when one passes away. Having a marriage license revoked when they cross state lines.
Sen. Cruz's "State Marriage Defense Act" is unlikely to become law anytime soon. Yet it is a good example of the kind of chaotic reaction the U.S. Supreme Court eventually could unleash if it upheld anti-gay state marriage laws in the case it will hear later this term. Justice Kennedy and Chief Justice Roberts, are you listening?
A good deal of the growing lack of confidence in the Supreme Court these days is due precisely to the concern that the justices are increasingly voting in ways that reflect the political values and preferences of the presidents who appointed them. Americans, in other words, increasingly believe that the justices are voting as "Republicans and Democrats." If this is so, it is not because the justices are "repaying" the favor of their appointment, but because presidents have gotten better at selecting nominees whose judicial approaches are likely to lead them to vote in ways that more or less conform to the appointing president's own political values and preferences. But is any of this true? To test this possibility, I did a simple, back-of-the-envelope "study."