A new prediction on SCOTUS' marriage equality decision: 6 to 3 to overturn bans.

This is based in part on Adam Liptak's Apr 29, 2015 article in the New York Times, "Gender Bias Issue Could Sway Chief Justice."

Liptak focuses on a little-noticed point made by Chief Justice John Roberts that changes my prediction of how he will vote, which could possibly make it a 6 to 3 decision.   This assumes that Justice Kennedy will vote with the four liberal justices to declare that all states must allow same-sex marriages based on the equal protection clause.

In oral arguments on Tuesday, the chief justice seemed to be against it in most of his comments.    But think again about this:

“I’m not sure it’s necessary to get into sexual orientation to resolve this case.  I mean, 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?”

This theory is not new, just not very widely explored.  But it would simplify the decision and allow the bans to be banned, based on prior court decisions that mandate equal treatment of both males and females.   It would not so blatantly "overturn a tradition" that has existed "for millenia."

This would fit with Roberts' decision that saved the Obamacare case -- not by agreeing that Congress could levy a penalty on those who do not buy insurance (as others were arguing), but by side-stepping that difficult question and simply saying that the penalty is really a tax -- and that congress already has the right to levy taxes.

Both of these Roberts decisions are alike in that they sidestep a difficult decision by changing the question.   In the Obamacare case, it shifts the question from "does congress have the right to impose a penalty?" to simply saying that it's a tax, not a penalty.  

In the marriage case, it shifts the question from "is there a right under the equal protection clause to marry?" to simply saying that it's a question of gender equality, not sexual orientation equality.   See Roberts' pattern?

It would simply apply existing sex discrimination law," in the words of Northwestern law professor, Andrew Koppelman, who had filed a brief in this case urging the court to strike the bans based on sex-discrimination.   So the idea is not original with the chief justice;  but he is the only one who decided to bring it up in oral arguments.

Here's the real reason I'm fairly sure this is what Roberts will do.   He cares about the reputation of the court and its/his legacy.   He wants to be on the right side of history.   But he also doesn't want to go any further out on a limb than he has to to get the result he wants.   

Also, both these decisions have the same degree of "cute" about them, which I think is also a characteristic of the chief justice.   Underneath, there's a bit of the trickster in Chief Justice Roberts.    And that's fine, as long as it keeps letting him make the "right" decisions.

So I'm now predicting that Kennedy will join Ginsburg, Breyer, Sotomayor, and Kagan in mandating marriage equality in all states, making it 5 to 4.   And then Roberts will write a separate decision based on gender equality, making it 6 to 3.    I respect the former reasoning, and I hope those five stick to that and don't just join Roberts in a "tricky" decision, which I think will leave things not as clear as they would be under an equal protection reasoning.

On the other hand, it could be that this alternative basis is the ace up Roberts' sleeve, in case Kennedy does not vote with the liberals.   Then Roberts could step in and save the court's reputation without joining an opinion he doesn't really share.

Either way, I am more optimistic about the ultimate outcome (be it 6-3 or 5-4) than I was yesterday.

Ralph