John Roberts’ Ruse To Trap Kennedy On Marriage Equality

April 2, 2013 2:00 a.m.
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During oral arguments before the Supreme Court last week, Chief Justice John Roberts may have revealed his antipathy to federal marriage equality by attempting to discredit an argument by Justice Anthony Kennedy that the Defense of Marriage Act violates states rights. And his persuasiveness — or lack thereof — may ultimately determine whether the law stands or falls.

To recap, some conservative DOMA opponents — still unprepared to embrace the liberal view that the Constitution requires the federal government to treat gay and straight married couples equally — have suggested the law infringes on states’ rights. At times during the oral arguments, Kennedy appeared to join their ranks. Thus, though the liberal justices articulated a more straightforward argument, rooted in the 14th Amendment, that DOMA denies gay couples equal protection under the law, the federalist argument presented them a clearer path to a 5-4 majority to strike down the law.

Enter Chief Justice Roberts, who repeatedly sought to knock down the more circuitous 10th Amendment argument, and present Kennedy a choice: You’re either with us, or with the liberals.Although Kennedy has written the Supreme Court’s two key majority decisions in favor of gay rights, he made clear last week that he’s uncomfortable with overturning gay marriage bans in all states — and more specifically that he’s uncomfortable with deciding either DOMA or the California gay marriage case before the court on equal protection grounds. “You’re really asking … for us to go into uncharted waters,” he told the lawyer advocating a constitutional right for gays and lesbians to marry. But Kennedy also wasn’t sympathetic to treating married gay couples differently under federal law, charting out a compromise that lets states define marriage and requires the federal government to accept their definition.

Perhaps conscious of Kennedy’s predicament, Roberts tried to build consensus against striking down DOMA on federalism grounds, knowing that neither side arguing the case was seeking that middle path. He repeatedly — and successfully — asked the government’s anti-DOMA lawyer to affirm that it does not believe the 1996 law violates states rights.

“So just to be clear, you don’t think there is a federalism problem with what Congress has done in DOMA?” Roberts asked U.S. Solicitor General Donald Verrilli on Wednesday.

“We — no, we don’t, Mr. Chief Justice,” Verrilli responded.

Lyle Denniston, a veteran Supreme Court analyst with the award-winning SCOTUSblog, described Roberts’ move as “a strategic effort to put Kennedy in a box.”

“I think the chief justice probably wants to sustain DOMA and he wants to force Kennedy into the posture of having to vote on the equal protection issue, knowing that Kennedy is not ready to strike down DOMA on equal protection,” Denniston said. “So I think the conservatives and the chief in particular are trying to force his hand because they think he is reachable on the merits.”

The Roberts-Verrilli exchange didn’t sit well with Kennedy, who jumped in and argued that DOMA supersedes the authority of states to regulate marriage. “There is a federalism interest at stake here, and I thought you told the Chief Justice there was not,” Kennedy said. Verrilli responded that when it comes to DOMA, “the problem is an equal protection problem.”

It puts Kennedy in an uncomfortable predicament between the four liberal justices who appeared inclined toward a more sweeping marriage equality ruling, and the conservative justices who appeared to support upholding Prop 8 and DOMA.

“It’s very common for justices to argue to each other using counsel as the medium for doing that,” said Randy Barnett, a constitutional law professor at Georgetown who supports axing DOMA on federalism grounds. “So this would not be unusual if the chief justice was using this series of questions to try to persuade Justice Kennedy not to go down that road.”

Roberts’ effort offers a glimpse into the strategic thinking behind Supreme Court justices’ behavior in major cases. It could be moot if Kennedy sticks with the federalist argument against DOMA and the liberal justices conclude they have no other way to overturn the law. Or the effort could backfire if Kennedy ditches federalism and sides with the liberals on a broader ruling in favor of gay marriage on equal protection grounds.

“You are insisting that we get to a very fundamental question about equal protection, but we don’t do that unless we assume the law is valid otherwise to begin with,” Kennedy told Verrilli.

“It was pretty clear that Kennedy thought it was premature to vote on equal protection and declare a right to marry,” said Denniston. “He’s looking for a way out on Prop 8 and in DOMA he’s looking for a federalism framework to strike it down.”

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