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

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  • Elloreigh

    These other cases really don’t tell us anything about where he would be on these two cases. That’s why it’s important to read the actual oral arguments transcripts (as opposed to taking the word of news sites), and with the grain-of-salt understanding that a justice’s questions don’t necessarily indicate how they will interpret the law. The questions posed to attorneys are about clarifying specific points of law; you can’t take them the way you would someone’s asking of a similar question in the context of a political debate or online discussion. You need to consider the initial questions and follow-ups from the standpoint of discerning what they ask about the interpretation of law.

    All that said, I’m inclined to think Roberts will vote to uphold both Prop 8 and DOMA.

  • John Doe

    DOMA – Roberts and SCOTUS will overturn it nationwide, and yet also rebuke Obama for dropping this in the lap of Congress. I think that the Executive Branch has a constitutional obligation to defend laws, etc. Even if that means bringing in a special counsel. That’s how they’ll address the “standing” issue. Overturn DOMA… while rebuking at the same time. I don’t think they’ll kick it back to anyone because of standing.

    Prop 8 – kick back to California so that it doesn’t shock the whole nation. I think that they could make a “standing” decision for that reason alone…. even though the California Supreme Court made it very clear that the defenders of Proposition 8 DO have standing to defend it. I don’t think that even Ginsburg or Kennedy are ready to mandate gay marriage across all 50 states. Thus, they aren’t looking at the Constitution to make this decision they are looking at where the country is. Very sad if they do this. The EPC is clear. They should rule accordingly.

  • jwrappaport

    Putting odds on his vote and speculating based on his personal life is beyond idiotic. An intelligent, meaningful discussion would have dealt with his conception of equal protection, religious freedom, and federalism. (His treatment of free speech and freedom of association are peripherally relevant at best.) That’s what the case implicates. Anything else is mental masturbation fit for a tabloid.

  • hf2hvit


  • Spike

    He will side with the conservative. These decisions is and has always been up to Justice Kennedy.

  • Cam

    The only reason I think he MIGHT vote for gay rights is the following.

    Since he is Chief Justice, this court has his name “The Roberts Court”. The “Roberts Court” is already tarred with the Citizens United verdict, and I think that Justice Roberts sees the way the wind is blowing on gay rights, and most likely doesn’t want “The Roberts Court” to be spoken of like the courts who decided the Dred Scott Case or other anti-Civil rights cases. So I think with his legacy in mind he might side for gay rights.

    HOWEVER, my fear is, even if he does side with them, he will convince the liberal wing of the court to soften the pro-gay decision in order to get his vote.

  • hyhybt

    @John Doe: “even though the California Supreme Court made it very clear that the defenders of Proposition 8 DO have standing to defend it”—Well, no, not exactly. The state court has no authority over federal courts, much less over the US Supreme Court itself. They were asked to give their non-binding *opinion,* and the case proceeded because the appeals court then chose to act on it.

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