In an article that should go down in the annals of improbable news analyses, Peter Baker argues in the New York Times (3/28/13) that the Chief Justice might be in favor of gay rights if they weren’t so popular:
Momentum in the political world for gay rights could actually limit momentum in the legal world. While the court may throw out a federal law defining marriage as the union of a man and a woman, the justices signaled over two days of arguments that they might not feel compelled to intervene further, since the democratic process seems to be playing out on its own, state by state, elected official by elected official.
The prospect that gay rights advocates may become a victim of their own political success was underscored during arguments on Wednesday over the constitutionality of the Defense of Marriage Act. Opponents of the law were left to make the paradoxical argument that the nation has come to accept that gay men and lesbians deserve the same right to marriage as heterosexuals while maintaining that they are a politically oppressed class deserving the protection of the courts.
Chief Justice John G. Roberts Jr. pressed that point with the lawyer for the plaintiff…. “You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?” he asked the lawyer…. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
As ludicrous is the idea that it’s the popularity of gay rights that keeps Roberts from embracing them, Baker seems to really buy the idea that legal protection for gay men and lesbians is no longer necessary in a nation swept by tolerance. He might want to consult the state of anti-discrimination law–where he’ll find that people can be legally fired from their jobs or kicked out of their homes for their sexual orientation in 29 states–as well as the FBI’s annual tally of hate crimes.