Could the Supreme Court of the United States rule in favor of California’s Proposition 8? In Proposition 8 California voters left intact the right of gays to continue to have the legal incidents of marriage but denied the name “marriage” to gay unions. Although trends – both popular and judicial – are in favor of legalizing gay marriage, a SCOTUS ruling in favor of Proposition 8 may not be as unlikely as it seems.
We can begin charting a path to a favorable ruling by going back to Roe v. Wade. But as we do that, we are going to bypass the moral and liberty questions and, instead, consider the SCOTUS as an institution. And, with that in mind, there is a substantial argument that Roe v. Wade damaged the SCOTUS as an institution.
By taking abortion away from the states in its too-creative discovery of a right to an abortion, the SCOTUS has, for forty years, been assailed by abortion opponents. The perception has developed that it is an ideological, power-hungry institution. If the SCOTUS had left the abortion issue to the states there would very likely be a majority of states allowing abortion, but the vitriol directed at the SCOTUS might have been avoided.
Then consider this year’s “Obamacare” decision, National Federation of Independent Business v. Sebelius, in which Chief Justice Roberts generously considered the penalty for noncompliance to be a “tax” as he wrote the majority opinion that ultimately upheld key components of the Patient Care and Affordability Act. But let’s not rush to judgment by giving him an ideological or political label. Instead, consider that he might have been chiefly concerned with the integrity and perception of the SCOTUS. The Harvard Law Review explains:
In To Tax, To Spend, To Regulate, Professor Gillian Metzger offers two alternative accounts of Chief Justice Roberts’s opinion in NFIB. On one account, his opinion is predominantly motivated by institutionalist concerns with preserving the legitimacy and stature of the Court. … [According to Dean Minow] the Chief Justice’s approach in NFIB was a step toward reviving respect for the judiciary by resisting the predictions of pundits and the political calculations of those lacking faith in law as its own distinctive enterprise.
If this is true, Justice Roberts, having considered the controversial legacy of Roe v. Wade, may be inclined to yield to the people of California and, in the big picture, let the states work out what they want to do with gay civil unions and gay marriage. And, if that is his inclination, the legal argument would be clear enough: there is no fundamental right for gays to marry, so California need only have a rational basis for denying the name “marriage” to gay unions. Historically it’s common for courts to uphold legislation at that level of scrutiny. Moreover, that line of reasoning would be less strained than calling the Obamacare penalty a tax.
Of course, if this would indeed be Justice Roberts’ preference, that doesn’t mean a majority of the Court will agree. But the vote of the Chief Justice might be a significant step in putting together a majority to reverse the Ninth Circuit.