Chief justice decries decision that does not ‘celebrate Constitution’

 

Greg Nash

Chief Justice John Roberts decried the Supreme Court’s decision to legalize gay marriage in a dissent that said the majority opinion had ignored the Constitution.

Roberts also sought to highlight his understanding of why the court’s decision would be celebrated by gay rights supporters, even as he argued the majority had gone too far with its opinion.

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“Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits,” he read from his opinion as crowds outside the court’s doors cheered the decision. “But do not celebrate the Constitution. It had nothing to do with it.”

Roberts found himself in the minority a day after writing the court’s opinion validating ObamaCare, for which he was heavily criticized in conservative circles.

On Friday, he argued that the biggest problem with the court’s decision is the disrespect it shows the democratic process. He and other conservative justices said the issue of whether states should recognize gay marriage should be left to the states.

“When decisions are reached through democratic means, some people will inevitably be disappointed with the results,” he said. “But those whose views do not prevail at least know that they have had their say, and accordingly are — in the tradition of our political culture — reconciled to the result of a fair and honest debate."

Some legal experts were expecting Roberts to side with the majority and deliver a 6-3 ruling following statements he made during legal arguments.

“If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't,” Roberts said in April when questioning John Bursch, one of the attorneys who represented states wishing to uphold gay-marriage bans. “And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?"

In his decision Friday, however, Roberts said the court’s decision shuts down the political process, which has expanded the right to marry to same-sex couples in 37 states.

“Indeed, however heartened proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.”

Roberts compared the same-sex marriage case to Loving v. Virginia, which struck down racial restrictions on marriage. The two he said are different because that decision did not aim to change the core definition of marriage.

“Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was,” he said.

Jim Ryan, head of the civil rights division for the New York-based law firm Cullen and Dykman, who had expected a 6-3 vote, called the Roberts opinion "inconsistent" given the chief justice's decision in the Obamacare case.

With Obamacare, Ryan said, Roberts argued that Congress intended to set up a system in which people could get subsidies to purchase healthcare insurance, regardless of whether the healthcare exchange was actually set up by the state, as the legislation specified.

In making that ruling, Ryan argued that Roberts ruled that Congress had clearly intended for people to get subsidies even if they were buying insurance on a federal exchange.

“Here if you look at the history of marriage, as Kennedy describes in the decision and especially in Loving v. Virginia, the intent is there that people have the right to marry without regard to same sex or opposite sex,” he said. "He seems to be inconsistent at least in my book."