The Supreme Court begins oral arguments today on two cases with implications for marriage equality, one a challenge of California’s Proposition 8 and one a challenge of the federal Defense of Marriage Act. As has been the case during state level efforts to expand marriage rights, Catholics are prominently featured on both the pro-marriage equality campaigns, the opposition, and now as six of the nine Supreme Court justices. Chief Justice John Roberts, along with Justices Clarence Thomas, Sonia Sotomayor, Samuel Alito, Anthony Kennedy, and Antonin Scalia are all Catholic, some more publicly about the role faith plays within their position than others.
Justice Scalia is expected to be at the forefront of marriage equality opposition. He previously compared homosexuality in the legal system as equivalent to anti-bestiality and murder laws. One observer writes of Scalia in the New York Times:
“No one expects the conservative 78-year-old jurist to have a sudden equal-protection epiphany. He has made it abundantly plain that he has no use for same-sex unions; he thinks they are immoral…
“His increasingly cranky and intolerant pronouncements have become an embarrassment even to people who tend to agree with him. Justice Scalia has not merely pre-judged the issue of same-sex marriage, but has cemented the impression of an anti-gay bias. He is something of a political cheerleader for anti-gay marriage forces and the belief that there is something wrong with gay relationships.
“If Supreme Court justices were subject to the ethics code that applies to lower federal court judges, Justice Scalia would probably have to recuse himself.”
Other justices, in keeping with traditional norms around judicial impartiality, are more reticent to make their opinions known on marriage equality. Interestingly, Chief Justice Roberts and Justice Kennedy are considered the two unknowns who could vote either way in a decision. Concerning their votes, a law professor from UCLA writes in The Huffington Post:
“Roberts is very firmly in the conservative camp on nearly every hot-button issue that comes before the Court. He’s voted with the right wing of the Court to strike down affirmative action plans, restrict access to abortion, deny victims of discrimination back pay and allow corporations to spend unlimited amounts of money on elections. Given that track record, Roberts seems likely to vote to uphold bans on gay marriage…
“Roberts must know that long before his tenure as chief justice is up in 25 years or so, any decision by the court upholding bans on gay marriage will seem retrograde and foolish. That won’t stop Scalia and Thomas, but it might stop Roberts.
“Kennedy is a Catholic appointed by President Ronald Reagan, so one might predict he’d be hostile to claims of gay marriage. Kennedy, however, voted in favor of equality in the Supreme Court’s two biggest gay rights cases of the past twenty years, Romer v. Evans and Lawrence v. Texas…
“Yet, even for Kennedy, gay marriage may be a bridge too far. And Olson and Boies’ case, despite being carefully and strategically crafted to goad the Supreme Court into ruling on the constitutionality of gay marriage nationwide, has a number of escape routes for Roberts and Kennedy.”
Roberts’ cousin, Jean Podrasky, is a lesbian advocate for marriage equality who will be seated in the court as arguments are heard in these two cases, attending as a guest of the chief justice as reported by ABC News. Nationwide, Catholic support for marriage equality has emerged from supportive families as much as LGBT individuals themselves, so it remains to be seen if the cousin’s invitation is a telling sign that Roberts might decide in favor of marriage equality.
Whichever way the Supreme Court decides, the products of Catholic education and Catholic values surrounding LGBT issues will be prominently featured in coming days, even if only implicitly, as the courtroom fills with pro- and anti-marriage equality advocates.
–Bob Shine, New Ways Ministry