As the Supreme Court prepares to hear oral arguments Tuesday in the case to decide whether gay marriage will become a constitutional right, the position of conservative Chief Justice John Roberts will be the center of focus, according to CNN
"If the Windsor majority votes in favor of marriage equality, the ruling will be one of the most momentous decisions of the Roberts court," said Judith Schaeffer of the Constitutional Accountability Center which is advocating for same-sex marriage. "Will John Roberts want to be remembered as having dissented from such a historic decision?"
Some conservatives would be deeply disappointed if Roberts votes in favor of same-sex marriage. Roberts previously angered conservatives when he voted to uphold Obamacare on the grounds that the law is a constitutional use of the government's taxing authority.
Conservatives are hoping that Roberts will align his legacy with those who believe same-sex marriage should be decided by the people, not the courts.
"The chief surely knows that his job is to be on the right side of the Constitution," Edward Whelan, president of the Ethics and Public Policy Center, a group that opposes same-sex marriage, told CNN. "Blatherings about the 'wrong side of history' are an appeal to intellectual cowardice."
Roberts dissented in a landmark case, United States v. Windsor, which struck down a key provision of the Defense of Marriage Act which denied federal benefits to lawfully married same sex-couples. Some believe that vote signals that he will vote to uphold state bans.
In his opinion in the case, Roberts emphasized the states' power to define the nature of marriage and said that power will someday "come into play on the other side of the board in future cases about the constitutionality of state marriage definitions."
One observer said the position could be grounds for Roberts to vote in favor of state bans in the current case before the court.
"Roberts is suggesting that concerns about the powers of states will support state laws excluding same-sex couples from marriage," David Cruz of the University of Southern California Gould School of Law told CNN.
But supporters of gay marriage point to Roberts' refusal in another case to join the dissents by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito which set out a position that state bans on same-sex marriage don't violate the Constitution.
At the time, Roberts said that the court "does not have before it, and the logic of its opinion does not decide" whether states can ban same-sex marriage.
"I think one reasonable explanation is that Roberts was preserving a clean slate for himself on the ultimate issue of marriage equality," Schaeffer said, according to CNN.
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