Someone billed as the Senior National Affairs Reporter for Yahoo, a Linda Goodwin, claims that “Justice Roberts [has revived] an old argument that could save gay marriage,” which makes it sound as though gay marriage is an ancient institution in peril of extinction. What happened is that Roberts asked a question of John Bursch, the attorney representing those 6th Circuit states whose marriage bans remain in place:
Counsel, I’m not sure it’s necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?
Goodwin seems to think this a brilliant insight, “suggesting a way for the chief justice to strike down state bans on gay marriage on relatively narrow grounds, without finding a fundamental right to marriage for LGBT people.” The tactic was first tried twenty years ago in Hawaii and, according to Goodwin, most judges since have rejected it, preferring arguments that focus on discrimination against gays as a group (like blacks and women) and specifically against their sexual orientation.
She’s wrong on both counts. Roberts’ question is stupid (sorry for the ad hominem but I’m fed up).