THE BLOG
01/23/2015 02:39 pm ET Updated Feb 02, 2016

Will Justice Roberts Join the Marriage-Equality Majority for All the Wrong Reasons?

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Predicting the Supreme Court's decisions is like reading tea leaves. Still, we never tire of either, even if only for the sake of enjoyment. So in that spirit I offer a potential outcome on marriage equality when the Supreme Court takes it up this spring that New York Law School professor Art Leonard, who has studied Supreme Court legal decisions on gay issues for decades, suggested as a possibility come June: Chief Justice John Roberts joins the majority and writes the decision himself, making it the narrowest possible ruling with regard to the ramifications for LGBT equality beyond marriage.

This would be the best possible scenario for anti-gay conservatives, including Justices Antonin Scalia, Clarence Thomas and Samuel Alito, who surely have come to see that nationwide gay marriage is a done deal. Their big hope and challenge now is limiting any decision's ramifications. Roberts, who might not want to be on the wrong side of history, and also might want to do what he can to help conservatives, can thus serve both sides and himself.

With 70 percent of Americans now living in a state where same-sex couples can marry, we are largely in a post-marriage-equality world already. Religious conservatives are moving on (though hardly giving up), recalibrating their tactics and targets, trying to blunt the expansion of rights to LGBT people in the name of "religious liberty" in a whole host of other areas, from allowing businesses to turn away gay and lesbian customers, particularly in catering their weddings, to firing a teacher because his or her gay marriage doesn't adhere to a private school's religious views.

There's been a lot of discussion in recent days about how the Supreme Court framed the questions for attorneys representing plaintiffs in the four states in the Sixth Circuit on whose gay-marriage bans the Supreme Court is hearing arguments in April. Fears have been expressed that the questions betray that the court is trying to "split the baby," perhaps ruling that a state must recognize all gay marriages from outside the state without being compelled to perform gay marriages itself.

But this outcome has seemed extremely unlikely for a while, as the court has allowed lower courts' rulings to stand, bringing marriage equality to state after state, now with 36 in total. It would be quite chaotic if the Supreme Court didn't strike down marriage bans now. And the court will be seen as having been exceedingly reckless. That doesn't seem like something Justice Kennedy wants as his legacy on gay rights, having crafted it very carefully for several decades. He'll go all the way, and the liberals will go with him.

But there are different legal theories on which the decision can be based and which could have profound implications for other kinds of discrimination against LGBT people. And, as Art Leonard told me in an interview on my radio program, that's where Justice Roberts could come in to narrow the decision.

"Two of the circuits out of the four that have decided this issue in favor of marriage equality used the fundamental right to marriage as their gateway to the decision," he explained. "They located it in the due-process-clause protection for liberty. They said the right to marry is fundamental, going back to Loving v. Virginia." (The Supreme Court decision in Loving v. Virginia struck down bans on interracial marriage.)

The other two circuits that decided in favor of marriage equality did not use the Constitution's due-process clause. They said marriage bans were discrimination based on sexual orientation and based the decision on the equal-protection clause of the Constitution.

"The Ninth Circuit said discrimination based on sexual orientation involves a suspect classification" and requires "heightened scrutiny" because of the Windsor case, Leonard noted. "They said they thought that in the Windsor case, which struck down DOMA, that the court had used some sort of of heightened scrutiny in that case." The Seventh Circuit, Leonard said, was also an equal-protection decision but ultimately didn't base its decision on heightened scrutiny and instead said there was no rational basis for the bans.

"So there are all these different theories floating around," Leonard said. "Kennedy won't want to go the due-process [route] because it could leave open to Scalia's fears of polygamy and incest [being constitutionally protected]. But Kennedy has shied away from equal protection and heightened scrutiny. The Windsor decision -- a key element was animus, that the law was driven purely by animus. On that basis he could strike down the marriage bans and the bans on recognition [of out-of-state marriages] without giving heightened scrutiny, without saying marriage is a fundamental right and thus not having much of an impact on any subsequent case [on LGBT rights or marriage]. I hope he doesn't do that, but he could."

But precisely because no one knows on what basis Kennedy would decide, Roberts could step in to make sure it's clear and narrow.

"If [Roberts] decides to vote with Kennedy and the four liberals, he would then control the decision, because as Chief Justice, he could assign it to himself or any of the other justices," Leonard explained. "He could keep it away from Kennedy. I think if he votes [for marriage equality], he would keep the decision for himself, and he would try to write it as narrowly as possible. But I don't think he's happy about the animus argument [of Windsor, in which he was in the dissent], so I don't know how he would do it. He might just decide that there's no rational basis. The narrowest basis is that there's no rational basis [to the marriage bans]. You don't get into whether marriage is a fundamental right. You don't get into heightened scrutiny. It doesn't set any major precedents for future cases on LGBT rights."

It would still be a big win for marriage equality, but the anti-gay crowd would have more to work with in fueling its unending crusade.