The claim could be used by Chief Justice John Roberts to strike down bans on same-sex couples’ marriages. The argument isn’t new, though, having appeared throughout the past decades of marriage fights — since the 1970s.
At Tuesday's marriage arguments, Chief Justice John Roberts made a brief comment that launched speculation he could join Justice Anthony Kennedy and the more liberal justices in voting against bans on same-sex couples' marriages.
Roberts notably disagreed with the court's 2013 ruling that struck down the Defense of Marriage Act.
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What did Roberts say? He asked the attorney for Michigan about sex discrimination.
"That theory had gotten only slight attention in scores of lawsuits challenging bans on same-sex marriage," Liptak wrote, adding that it is "unlikely to serve as the central rationale" for a Supreme Court opinion striking down the marriage bans.
Whelan goes on to call the argument "badly confused and incompatible with Roberts' vaunted commitment to judicial restraint."