The Supreme Court begins hearing oral arguments on two cases regarding gay marriage, and Chief Justice Roberts’ cousin, Jean Podrasky, will be in attendance. Podrasky is a lesbian, and wants to be able to marry her partner of four years. Podrasky and others actively campaigned against California’s controversial Proposition 8, which banned gay marriage in the state. The Defense of Marriage Act (DOMA) defines marriage as between one man and one woman for federal purposes, primarily benefits. Both of these laws are in question before the Supreme Court.
The DOMA case is the more difficult of the two cases, despite being simpler, because the Court must answer the question, “Is DOMA constitutional,” with a yes or a no. In other words, they must establish constitutionality regarding same-sex marriage that could have far-reaching implications when it comes to various state laws, as well as religious beliefs. The Court does tend to wade very carefully when confronted with questions that may nullify existing state laws.
When it comes to the constitutionality of DOMA, the question affects how the 1st Amendment is interpreted, as many believe that allowing same-sex marriage violates their religious freedom. For some, that means being “forced” to acknowledge gay couples as legitimately married couples. However, a group of religious leaders are worried about something else: that they’ll have to recognize sexual relations between gay people as on the same moral level as relations between straight married couples. Because there are many people whose moral codes do not allow same-sex sexual relationships, they contend that forcing them to acknowledge them as they would heterosexual sexual relationships within the context of marriage violates their ability to adhere to their religious tenets.
It will also have implications regarding the 14th Amendment. Under DOMA, same-sex couples don’t have access to certain benefits, including tax benefits, on a federal level that they do on the state level in states that recognize same-sex marriage. This calls into question whether DOMA violates the Equal Protection clause.
And there are also some who believe that gay marriage is, and should remain, a states’ rights issue, so there may be implications regarding the 10th Amendment.
The Proposition 8 case, however, may be an easier one to rule on because the law can be struck down without also deciding constitutionality of allowing or prohibiting same-sex marriage. While the constitutionality of Proposition 8 is what’s in question in the case, the case is more flexible because it can bring same-sex marriage back to California while avoiding establishing a national constitutional application.
Justice Roberts is known to be conservative, but has also been known to rule in favor of same-sex marriage in some instances. Earlier this month, he denied a request to stay the District of Columbia’s same-sex marriage law because the D.C. Circuit Court of Appeals was still considering the case, and it was “not the time for the Supreme Court to get involved.” Opponents of the law wanted to put it to city voters, based on the fact that the D.C. charter requires a referendum on this type of an issue, and the D.C. Council had ruled that no referendum was necessary when implementing the law.
Furthermore, he upheld the constitutionality of the Affordable Care Act, which many conservatives continue to seek to defund or nullify despite the Court’s ruling that it is, in fact, constitutional. Roberts has shown, more than once, that he doesn’t always sway with the political winds.
The Court is composed of four liberal judges and four conservative judges, with Justice Kennedy being seen as a swing vote. However, the fact that Roberts has a gay cousin, whom he invited to his Senate confirmation hearing in 2005, shows that he has experience with the issue of gay rights from more than a political perspective. Thus, he likely has a fuller view of the issue than just what is politically and religiously popular for conservatives.
Podrasky wrote an op-ed in which she said she knows her cousin is a good man who understands that society is “becoming more accepting of the humanity of same-sex couples and the simple truth that we deserve to be treated with dignity, respect, and equality under the law.” She is optimistic that he will stand on the side of equality.