Some justices' decisions are often easy to predict. Roberts used to be one of those, but that’s becoming less so. In many important cases, progressives shouldn’t count him out.
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I don't believe that a majority of the justices were convinced today that there's any legitimate reason to deny gay and lesbian couples the right to marry. And I think they understand how much gay and lesbian couples and our families are harmed by the denial of that right. Our nation is certainly ready for marriage equality, and the Constitution demands no less. I hope and trust that the court agrees.
The 14th Amendment does not permit the voters of a state to impose a badge of inferiority on committed same-sex couples and their families and deny them the right to marry. When the justices hear oral arguments this week, they should remember that the will of the people can't trump the basic guarantees of personal, individual rights set out in the text of the Constitution. It is the Supreme Court's job to enforce the Constitution's guarantee of equality for all.
When the Court considered the scope of the Fourth Amendment’s protections in Riley, it didn’t say it was up to Congress or state legislatures to decide how much privacy Americans enjoy when it comes to their cell phones. Instead, the Court considered the text and history of the Fourth Amendment, as well as the Court’s precedents. The Court should do the same thing this year when it considers the scope of the Fourteenth Amendment’s protections in the marriage equality cases.
As America's second founding turns 150, and as the Supreme Court continues to hear cases that draw on its constitutional legacy, it’s important for all of us—including the justices—to remember these forgotten founders and to reflect on their constitutional handiwork. This is nowhere truer than in Obergefell, where the Constitution’s text requires marriage equality.
When the Justices hear oral argument in the marriage equality cases later this month, they should remember Roberts’s advice to “take them at their word.” The Framers made a conscious decision to write the Fourteenth Amendment as a broad guarantee of equality for all, preventing majorities in the states from discriminating against any person or group of persons. It is the Supreme Court’s job to enforce the Constitution’s guarantee of equality for all.
With the Supreme Court about to take up the momentous issue of marriage equality for gay and lesbian couples in Obergefell v. Hodges, it’s noteworthy that on April 10 48 years ago, the court heard oral argument in Loving v. Virginia, a case that produced the court’s most important ruling to date vindicating the fundamental right to marry. Loving has figured prominently in recent lower court decisions upholding the right of same-sex couples to marry, and has been relied on in Obergefell by those urging the court to strike down state laws denying that right.
As 7th Circuit Judge Richard Posner wrote last year in an opinion striking down same-sex marriage bans in Wisconsin and Indiana, the argument that tradition supports the bans “runs head on into Loving.” That conclusion should resonate with Chief Justice Roberts. And if Roberts is true to his confirmation hearing testimony, he should find in Obergefell that state laws prohibiting same-sex couples from marrying violate their fundamental right to marry.
The public health community, various members of the energy sector, several states, and the Supreme Court’s own precedents are all on the side of the EPA’s new standards. When the court decides this case in a few months, here’s hoping that a majority of the justices are, too.
At any argument, there are always tough questions for both sides, but the government has to have been happy about the questions that were asked during the King argument — as well as the answers that Verrilli was able to give.