Chief Justice John Roberts:
Some analysts have interpreted your break with the conservative wing of the court in upholding the Affordable Care Act as a decision born less of legal ideology and more of pragmatic concern for the legacy of the court. One version of the argument says that you recognized that yet another 5-4 decision along political lines would further diminish a court whose public esteem has been waning since the mid nineties. The extent to which such reasoning informed your decision is known only to you, but the possibility of it emboldens me to offer an argument in that spirit in the matter of Hollingsworth v. Perry.
Same sex marriage will eventually be legal in this country. You may have your reasons for wishing it were otherwise, but the evidence is overwhelming that the tide of public opinion is rapidly turning towards legalization. Most recent polls show at least plurality support for same sex marriage, and many show a majority in the pro column. Among Americans born after 1981, the trend is even more pronounced, with 70% saying they support marriage equality. Meanwhile, Amazon is airing an ad that is charming retro except for its non-punchline punchline: that the hapless, husband has a husband of his own. It’s not a political ad, it’s a Kindle ad, one in which gay marriage is simply treated as a fact of American life. Because one day soon, it will be, everywhere.
Thus the question before your court today is not ultimately about whether the right of equal protection will be acknowledged for LGBT citizens, though of course that decision will affect the quality of life for thousands of families in California and the other states in the near term. The only long term impact of your courts decision in today’s case is whether Hollingsworth v. Perry will be listed in the history books along side Brown v. Board of Education or Dred Scott v. Sandford.
So, Mr. Chief Justice, I urge you to varnish rather than tarnish your legacy and the legacy of your court and to vote to uphold the lower courts’ rulings to nullify California’s Proposition 8. Though this is a thoroughly realist argument, I recognize that the rule of law requires a formalist framework, and that the parameters of this case may preclude its application as a precedent to establish marriage equality in all 50 states. Nonetheless, I believe a broadly worded decision can put those states who have or would enact laws that discriminate against their LGBT citizens on notice that those laws will not stand Constitutional scrutiny and should be abandoned with all deliberate speed. Write that decision, sir, and take your place in the history books as one of the champions of civil rights in the 21st century.
