When his was the key vote to uphold most of the Affordable Care Act last year, outraging many of his fellow conservatives, Chief Justice John Roberts was by chance about to go out of the country for lectures in Malta. The chief joked that the best place for him then was an island fortress.
Is another trip to Malta in the offing?
The Roberts court has produced a 5-4 decision that struck down a federal law keeping federal benefits from legally married gay couples. In that Defense of Marriage Act case, Roberts was with the conservative minority.
Strikingly, though, he wrote the majority opinion in which the court declined to hear the California gay marriage case. The effect of the Roberts majority’s ruling is that lower court rulings allowing gay marriage in California will stand, with gay and lesbian couples getting hitched in the nation’s most populous state.
Not particularly conservative? Probably a good example of Roberts’ leadership of the court, in an era in which the court and the nation are deeply divided over political and cultural topics.
The rejection of the California appeal was based on the legal doctrine that the plaintiffs did not have standing to challenge the lower court rulings. A decision based on standing is one that is more important to judges than to the general public; in fact, conservative Justice Antonin Scalia joined Roberts in the majority in the rejection of the California appeal. Scalia has been one of the justices most likely to decide a case on that ground.
And while the current effect of the ruling is to expand dramatically the footprint of gay marriage, the decision also avoids for the time being a vote of the court on the broader question of whether a gay marriage ban is constitutional. The 14th Amendment mandates the equal protection of the laws, and the original California litigation — if not for the question of standing — would squarely put that before the court.
The chief justice is a student of the court’s history and had an experienced lawyer’s knowledge of it before being nominated by President George W. Bush in 2005.
Maybe some conservatives will want to chase him off to Malta again. But these cases, given the underlying tug of a growing support for gay rights in American society, suggest a skilled advocate playing defense from the court’s center chair.