Chief Jus­tice Roberts takes spot­light in mar­riage fight

GA Voice - - National News -

“no le­git­i­mate pur­pose.”

And Roberts’ seem­ing will­ing­ness to rec­og­nize sex dis­crim­i­na­tion in the con­text of bans on same-sex mar­riage stood in stark con­trast to his equally blunt com­ment to same-sex cou­ples’ at­tor­ney Mary Bo­nauto.

“My ques­tion is you’re not seek­ing to join the in­sti­tu­tion, you’re seek­ing to change what the in­sti­tu­tion is. The fun­da­men­tal core of the in­sti­tu­tion is the op­po­site-sex re­la­tion­ship and you want to in­tro­duce into it a same-sex re­la­tion­ship.”

To that re­mark, Har­vard Law Pro­fes­sor Charles Fried said he would have replied, “So what?”

“At one time, peo­ple thought women were in­fe­rior to men in­tel­lec­tu­ally and phys­i­cally, and Aris­to­tle thought women made no con­tri­bu­tion to the ge­netic com­po­nent.” said Fried, a U.S. solic­i­tor gen­eral un­der Pres­i­dent Rea­gan and a for­mer mem­ber of the Mas­sachusetts Supreme Ju­di­cial Court. “They were wrong then, and we think we’ve got it right now. If I had been ar­gu­ing ... I’d have said, ‘Maybe that was the def­i­ni­tion back then, but it’s the wrong def­i­ni­tion of the con­cept we’re talk­ing about now.’”

Jenny Pizer, law and pol­icy project direc­tor for Lambda Legal, said that lim­it­ing the def­i­ni­tion of mar­riage to only male-fe­male cou­plings is “a sex dis­crim­i­na­tion prob­lem right on its face” be­cause it “in­volves a core sex stereo­type that men should seek in­ti­mate re­la­tion­ships with women, and vice versa.” And, she noted, many lower courts have al­ready rec­og­nized as sex dis­crim­i­na­tion cer­tain ha­rass­ments of gay men at work and the de­nial of spousal benefits to em­ploy­ees with same-sex spouses.

Pizer said the ma­jor­ity could be head­ing to­ward a con­clu­sion that says a state ban on mar­riage for same-sex cou­ples is sex dis­crim­i­na­tion on its face and is based on gen­der stereo­types.

But it’s not clear why Roberts asked the ques­tion about sex dis­crim­i­na­tion. And his ques­tion re­gard­ing sex dis­crim­i­na­tion has to be viewed against the back­drop of his dis­sent in Wind­sor. There, Roberts promi­nently stated, “In­ter­ests in uni­for­mity and sta­bil­ity am­ply jus­ti­fied Congress’s de­ci­sion to re­tain the def­i­ni­tion of mar­riage that, at that point, had been adopted by ev­ery State in our Na­tion, and ev­ery na­tion in the world.”

Supreme Court Chief Jus­tice John Roberts’ ques­tion on sex dis­crim­i­na­tion dur­ing oral ar­gu­ments over same-sex mar­riage give LGBT ad­vo­cates hope he may vote to strike down state bans pro­hibit­ing mar­riage equal­ity. (Of­fi­cial photo)

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