Supreme Odds: How Will Chief Justice John Roberts Jr. Vote On Marriage Equality?

adj Official CJ Roberts

Chief Justice John Roberts Jr. surprised many court watchers last year when he not only voted with the liberal wing of the court but led it in upholding President Obama’s Affordable Care Act.

An appointee of President George W. Bush, Roberts seemed to that point like a reliably conservative vote, especially on cases involving such enormous partisan divisions as “Obamacare.” The decision was a big relief to people with costly illnesses, including people with HIV or breast cancer. It is a huge victory for the Obama administration, because health care reform was Obama’s signature achievement in his first term.

Roberts’ vote has been discerned only three times and his record has been one for two on cases that were somewhat gay related but could be decided on other grounds. He was part of the 8 to 1 majority in Doe v. Reed in 2010 that upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State.

But he was part of the conservative minority in Christian Legal Society v. Martinez in 2011 when the majority ruled that the First Amendment guarantee to free exercise of religion did not require that a religious student group be given official campus recognition and privileges when it refused to abide by a non-discrimination policy that all other student groups were required to abide by. And he was with an 8 to 1 majority in 2011 in Snyder v. Phelps, ruling that the First Amendment protects an anti-gay protester’s demonstrations in close proximity to a private funeral service.

His potential to sit squarely on the conservative wing on gay-related matters is probably mitigated by his age (58) and the fact that he has an openly gay relative, 48-year-old Jean Podrasky of San Francisco. Roberts felt comfortable enough with Podrasky to include her as his invited guest during his confirmation hearing in 2005 and to provide her with tickets for special guest seats at the marriage oral arguments.

Here’s what we think the odds look like, statistically speaking, for Roberts and some other factors to weigh in when considering his vote:

Percent voted pro-gay: 33

Percent voted with liberal wing: 27

Odds for two pro-gay votes: 1 to 2

Appointed by: President George W. Bush

Age: 58

Religion: Catholic

Most notable cases: Jackson v. D.C. As the court’s overseer for the D.C. Circuit, Roberts denied a request from anti-gay activists to stop Washington, D.C.’s new marriage equality law from going into effect in March 2010.

Interesting factoid: Some opponents of allowing same-sex marriage have argued that marriage is all about procreation, and that adoption is at best a “second-best option.” Roberts and his wife are among the married couples with adopted children.

Notable remark during Prop 8 argument: Suggested the debate was “just about the label” of marriage.

Notable remark during DOMA argument: Roberts asked why President Obama didn’t have “the courage of his convictions” that DOMA was unconstitutional and “instead, wait until the Supreme Court” rules it so.

Lisa Keen, co-author of Strangers to the Law: Gay People on Trial, will be posting nearly daily on legal matters leading up to and beyond the Supreme Court decision. Her coverage on this and other issues is also available at