Second, as also noted at the MSBA panel, Roberts is a judicial minimalist. With a few notable exceptions, Roberts prefers to resolve cases on what it sees as the narrowest grounds possible, drawing the most votes as possible. (Elonis v. United States
is but the latest example.) Roberts’ questioning indicates that he sees sex discrimination as the narrowest argument for the petitioners. He asked the states’ counsel “if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
Third, on a related point, Roberts may have a particular reason to desire a narrow ruling in Obergefell
. Conservatives have long feared that striking down state same-sex-marriage bans would endanger bans on polygamy. Justice Scalia has said as much in his dissents in Windsor
and Lawrence v. Texas
. In Obergefell
,a 15-state amicus brief
, citing the pending appeal of a ruling striking down Utah’s criminalization of polygamy, argued that a ruling for the petitioners would “inevitably override legitimate policy differences in other areas, such as how [marriage] is to be limited based on age, consanguinity, and number of participants.”
During argument in Obergefell,
Justice Alito asked whether a group consisting of two men and two women – all highly educated consenting adults – would be entitled to a marriage license under the petitioners’ arguments. Justices Scalia and Alito both were skeptical of the petitioners’ answer. Roberts said nothing, but it’s doubtful that he is as confident as the petitioners’ counsel that the four-person hypothetical was easily distinguished.
Roberts’ love-triangle hypothetical invites a follow-up question: “What if Joe loves Tom and
Sue?” It’s easy to imagine Roberts fearing that Justice Kennedy’s likely rationale – a dignity-based argument
– provides an insufficiently clear answer. But a sex-discrimination rationale provides an easy answer: there is no sex-discrimination if the state tells Tom, Joe, and Sue that only a two-person marriage is legal.