At Tuesday's marriage arguments, Chief Justice John Roberts made a brief comment that launched speculation he could join Justice Anthony Kennedy and the more liberal justices in voting against bans on same-sex couples' marriages.
What did Roberts say? He asked the attorney for Michigan about sex discrimination.
The New York Times' Adam Liptak wrote that the theory — that marriage bans are unconstitutional sex discrimination — "could allow Chief Justice Roberts to be part of a 6-to-3 decision" in favor of marriage equality.
"That theory had gotten only slight attention in scores of lawsuits challenging bans on same-sex marriage," Liptak wrote, adding that it is "unlikely to serve as the central rationale" for a Supreme Court opinion striking down the marriage bans.
Ed Whelan, a strong opponent of same-sex couples' marriage rights, disagreed. In National Review, he called Liptak's column a "stark example of overreading."
Whelan goes on to call the argument "badly confused and incompatible with Roberts' vaunted commitment to judicial restraint."
But there is history for this argument — beyond even the NYT analysis. First, in Roberts' dissent to the DOMA decision, he made clear that the court was in no way addressing state marriage laws:
At the time, many pointed to the chief justice's dissent — which noted the importance of federalism in Kennedy's decision that struck down the ban on federal recognition of same-sex couples' marriage rights in DOMA — as his attempt to limit the decision.
But, it is a different time now, and justices' views — like everyone else's — do change with the time. It is entirely within the realm of reason that Roberts — like many people — now believes the Constitution does not allow states to ban same-sex couples from marrying.
Notably, the argument that marriage bans are a type of sex discrimination was not raised by the parties in the DOMA litigation. As such, Roberts could fairly say this is the first time that argument was presented before him as a justice.
Edie Windsor, for example, only raised a sexual orientation discrimination claim. She didn't talk about DOMA as discriminating on the basis of her sex.
While Liptak is right that the sex discrimination claim hasn't been key to the recent marriage equality decisions, it isn't exactly the "sleeper issue" some have made it out to be over the past two days — and has come up repeatedly in the past two years.
Most importantly, the Kentucky plaintiffs put the issue directly to the justices.
As Liptak noted, the argument also was raised in an amici curiae — or friends of the court — brief to the justices in the marriage cases.
Liptak noted also that the sex discrimination argument figured into a federal district court judge's Nov. 7, 2014, decision striking down Missouri's ban.
Before that, though, the sex discrimination argument also was cited by 9th Circuit Court of Appeals Judge Marsha Berzon as a reason for striking down Idaho and Nevada's bans this past October.
Back in 2010, U.S. District Court Judge Vaughn Walker, in striking down California's Proposition 8, also detailed the sex discrimination present in marriage bans.
The sex discrimination argument even goes back way before this modern era of marriage cases to the first (incomplete) court wins for marriage equality back in the 1990s.
The Hawaii marriage case was premised upon a sex discrimination claim, advanced under Hawaii's Constitution. Acting Chief Justice Steven Levinson wrote on May 5, 1993:
What's more, the Hawaii Supreme Court noted that the issue of sex discrimination had been raised in the first round of marriage cases in the 1970s. Singer v. Hara was a 1974 case out of Washington; Jones v. Hallahan was a 1973 Kentucky case.
So while Roberts picking up on the sex discrimination issue was perhaps unexpected — and while Whelan could be right that it will go nowhere — it is not some hidden argument.
What's more, this would not be the first time a justice made a similar move in a "gay rights" case.
Back in 1986, Justice Sandra Day O'Connor joined the court's opinion in Bowers v. Hardwick, upholding the constitutionality of sodomy laws against a claim that there exists a "fundamental right upon homosexuals to engage in sodomy," as the majority opinion put it.
In 2003, however, when the issue returned to the court, O'Connor voted to strike down the Texas sodomy law at issue in Lawrence v. Texas. She did not, however, join the five-justice majority opinion striking down because "Bowers was not correct when it was decided, and it is not correct today."
Instead, O'Connor wrote an opinion "concurring in the judgment" — in other words, agreeing with the ultimate result of the majority opinion but with a different reasoning. She agreed the law is unconstitutional, but rather than switching her Bowers vote on the "fundamental rights" claim, she wrote that she "bas[ed her] conclusion on the Fourteenth Amendment's Equal Protection Clause."
Roberts, if he wishes to join the majority in the marriage cases, could make a very similar move.
If he chooses to do so, the sex discrimination argument is a means by which he could both avoid dissenting from a national ruling on marriage while also not switching his vote opposing Kennedy's reasoning in striking down DOMA. The chief justice could, instead, author a decision "concurring in the judgment" based on sex discrimination.
A final note about the sex discrimination argument: It's hard to imagine that Justice Ruth Bader Ginsburg, whose career before joining the court was aimed at advancing gender equality, would not at least be interested in possibly joining such an opinion.
Ginsburg could join both a majority opinion, that most expect would be written by Kennedy, and a sex discrimination-based opinion written by the chief justice. It could, though, give Ginsburg more say in how Kennedy crafts his opinion — as he would want to maintain a five-justice majority so that he would be authoring the opinion that stands as the court's opinion and, hence, law of the land.