Should the Supreme Court Defer to Congress and Uphold the Defense of Marriage Act?


Writing at The New Yorker, Richard Socarides reviews Chief Justice John Roberts' recent vote to uphold Obamacare and suggests that Roberts might be willing to side with his liberal colleagues on another hot button issue that is soon to reach the Supreme Court: gay marriage. As Socarides sees it:

in these marquee gay-rights cases facing the Court next term—as American public opinion, especially among young people, shifts rapidly towards greater equality—Roberts may find the very kind of "legacy" issues around which he has shown a willingness to break with his more conservatives colleagues. Put another way, these cases will help define what freedom and equality look like in America, perhaps for decades. Will Roberts want to be on the losing side of history?

One of the marquee cases he refers to stems from the May ruling by the U.S. Court of Appeals for the 1st Circuit which struck down several provisions from the federal Defense of Marriage Act (DOMA). Paul Clement, the Republican lawyer representing the House of Representatives in its legal defense of that law, has asked the Supreme Court to take up the case, and it's very likely the Court will do so in its upcoming term.

So let's assume DOMA will be the first gay rights case to reach the Roberts Court. Is Socarides' right that the chief justice will again show "a willingness to break with his more conservative colleagues"?

I wouldn't bet on it—at least not if we take Roberts at his word. Remember that Roberts framed his vote upholding the Patient Protection and Affordable Care Act as an exercise of judicial restraint, writing in his opinion, "It is not our job to protect the people from the consequences of their political choices." I don't see why Roberts wouldn't rely on that same principle and vote to uphold the Defense of Marriage Act. Both Obamacare and DOMA are duly-enacted federal laws, after all.

If you cheered the chief's ruling on health care, don't be shocked when he grants the same deferential treatment to a federal law you don't like.