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As Supreme Court Moves Slightly on Same-Sex Issues, Where Is the Chief Justice?

By William Vogeler, Esq. on July 17, 2017 | Last updated on March 21, 2019

It is a rare occasion when the Supreme Court reverses itself, but what about Chief Justice John Roberts, Jr.?

It has happened, for example, when Chief Justice Roberts changed his vote on Obamacare. In that case, he flipped from the conservative majority to the liberal dissent.

Now court watchers are speculating that he has changed his view on same-sex marriage. Although that decision left the building two years ago, it matters again because there's a little rustling of the tea leaves at the Supreme Court.

Obergefell to Pavan

In Obergefell v. Hodges, the Court ruled that same-sex couples have a constitutional right to marry. That was 2015, when Roberts vociferously dissented.

In Pavan v. Smith, the Court said same-sex couples have a right to be identified by their gender on their child's birth certificate -- females in the case. That was last month, and Roberts' name was conspicuously missing from the decision.

The per curiam opinion, an unsigned, eight-page ruling, did not identify an author or the vote. But to students of jurisprudence, it said something about the balance of the Court on same-sex issues.

According to Judge Alex Kozinski, a longtime conservative on the U.S. Ninth Circuit Court of Appeals, Roberts has shifted.

"No doubt about it," Kozinski said in a recent panel discussion at the University of California, Irvine School of Law.

Majority Shift

Kozinski explained that when a judge does not note being in the dissent of a published opinion, the jurist has tacitly signed on to the majority. Will Baude, a University of Chicago law professor, disagreed with Kozinksi.

"We don't know for sure, but I think he's probably wrong," said Baude, who once clerked for Roberts.

Whether the Chief Justice Roberts has changed his opinion about same-sex issues, he did not say anything about it in his opinions this term. Next term, however, he will have a chance when the Court considers a case about whether business owners must provide services for same-sex unions even if they oppose on religious grounds.

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