U.S. Supreme Court Justices Chief Justice John Roberts and Anthony Kennedy applaud prior to President Obama's State of the Union speech on Capitol Hill in Washington, February 12, 2013
The Supreme Court will decide two long-awaited gay marriage cases on Wednesday, and nobody knows for sure how Chief Justice John Roberts or Justice Anthony Kennedy will vote.
Kennedy, for one, has libertarian leanings and is impossible to predict. And the conservative Chief Justice Roberts shocked everybody by upholding Obamacare, so there's speculation he may break with conservatives on another highly politicized issue — the gay marriage cases.
One of those cases challenges the Defense of Marriage Act (DOMA), which denies married gay couples the federal benefits associated with marriage. The other case challenges California's voter-approved gay marriage ban Proposition 8.
DOMA is arguably the more interesting case, because striking it down would give federal benefits to gays in the 12 states (and District of Columbia) that already allow same-sex marriage. Prop 8, on the other hand, will probably apply only to California.
During the DOMA arguments, there were signs Kennedy might be inclined to knock it down because it steps on states' right to define marriage. DOMA "runs the real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody," Kennedy said in March.
Kennedy has also made statements suggesting he wouldn't want the court to step in overturn a federal law. He told reporters in Sacramento in March that the Supreme Court has been deciding too many social issues like gay marriage, immigration, and health care.
"I think people were confused with what he was trying to signal with those statements," Stephen Herman, a gay rights activist in San Francisco told Business Insider at the time.
Roberts is a wild card of a different sort. He didn't suggest during oral arguments that he wanted to strike down DOMA. (At one point, he even implied the court didn't need to protect gays by striking down DOMA because they already have so much political power.)
Then again, Roberts didn't seem like a huge fan of Obamacare during those oral arguments either, and he surprised us last summer. Roberts, who's stated his support for states' rights, could very well vote to strike down DOMA on those grounds.
The chief justice may also vote to strike down DOMA for a very different reason: his legacy. The public's opinion has shifted dramatically on same-sex marriage, and DOMA seems like a vestige of anti-gay sentiment that has largely disappeared from the public sphere.
Bill Clinton signed DOMA back in 1996, and even he has renounced the law.
Given Roberts' bold ruling on health care, it's hard to imagine him upholding a federal law that's not only unpopular but also seeks to govern an area that's regulated by the states. Roberts may surprise us again.
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