The President and The Chief Justice Prepare to Make History on Gay Rights up or Down

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Where Chief Justice Roberts comes down on two gay-marriage cases 

could help shape his legacy as well as the court's relevance on social issues.

Chief Justice John Roberts preserved one of President Barack Obama's main legacies—and helped forge his own—by largely upholding the president's health-care law last year. Now, the two leaders' places in history are entwined again, as the Supreme Court prepares to hear two gay-marriage cases later this month.

After years of equivocation, Mr. Obama in recent months has planted himself firmly in favor of gay marriage, and his administration is now asking the court to strike down separate federal and state laws withholding marriage rights from same-sex couples. "American attitudes have evolved, just like mine have, pretty substantially and fairly quickly, and I think that's a good thing," Mr. Obama recently told ABC News. In 2012, for the first time, a slight majority of Americans favored same-sex marriage, according to data from the nonpartisan Pew Research Center, with young people especially supportive.

Building a Legacy

Key Supreme Court actions in Chief Justice John Roberts's first seven years.

2007: Strikes down public-school assignments that rely on race.

2008, 2010: Rejects handgun bans in Washington, D.C., and Illinois in two 5-4 rulings.

2009: Crafts an 8-1 opinion that leaves a key section of the Voting Rights Act mostly intact. Law faces another challenge in current court term.

2010: Ends limits on corporate and union election spending in 5-4 Citizens United ruling.

2012: Mostly upholds President Obama's Affordable Care Act.

Today, however, only nine states and the District of Columbia allow gay marriage, while a majority of states forbid it. That disconnect between the law and trends in social attitudes poses a dilemma for a chief justice who has shown deep concern not only for individual decisions, but also for the long-term legitimacy of the Supreme Court as an institution.

One case under consideration concerns the Defense of Marriage Act, which denies federal recognition to same-sex couples married under state law. A second concerns California's Proposition 8, a 2008 voter initiative amending the state constitution to restrict marriage to a man and a woman.

In both cases, the Obama administration says the laws unconstitutionally burden same-sex couples without valid reasons. Defenders of the laws say nothing in the Constitution prevents restricting marriage to heterosexuals. Among their arguments for a restriction: Only the union of a man and a woman can lead to natural procreation.

 Chief Justice Roberts doubtless knows "that history is going in a certain direction," even if he isn't persuaded that the Constitution requires invalidation of laws denying recognition to gay marriages, said Richard Pildes, a law professor at New York University. If that leads him to side against Mr. Obama's position, it could place the chief justice in "a tragic kind of position—knowing how a decision they believe is correct today is going to look bad 15 years down the road."

While Mr. Obama will leave office by 2017, the 58-year-old Chief Justice Roberts could remain on the bench for two decades or longer, with his actions today coloring his own reputation as American social attitudes evolve.

As is customary, Chief Justice Roberts had no comment regarding pending cases, his office said.

Supreme Court history is littered with rulings that were later viewed as retrograde, if not obviously in error. In 1944, the court upheld the internment of Japanese-Americans—leading to a congressional apology in 1988. And in 2003, the court overturned its own 1986 decision that had permitted criminal punishment for gay sex. That 2003 opinion, by Justice Anthony Kennedy, flatly declared that the prior decision "was not correct when it was decided, and it is not correct today."

 But history's direction can confound expectations. At the time of the high court's Roe v. Wade decision in 1973, abortion appeared to be gaining broader support. Four decades later, the procedure's morality remains fiercely disputed, and some—including Justice Ruth Bader Ginsburg, who favors abortion rights—suggest the court's intervention triggered a backlash against wider acceptance of abortion rights.

Legal experts say that how the chief justice expresses his position on gay marriage—whether he writes his own opinion or joins that of another justice—could be as significant as how he votes. Should he vote to uphold either or both of the laws against gay marriage, his opinions will be parsed for indications of his attitude toward gay couples and whether he writes favorably of political trends that could expand gay marriage without court intervention.

Under that alternative, in 20 years he could say, "See, we said this is a matter for legislative resolution and not judicial resolution, and things turned out well," said Harvard law professor Mark Tushnet. "To be able to do that, the opinion has to be very carefully written to make it clear that the court is taking no position on the merits of gay marriage."

Chief Justice Roberts also has to be careful if he decides to side mostly with gay-marriage supporters, Prof. Tushnet says. "What he would want to avoid is saying that Mississippi has to have gay marriage tomorrow," he says. In the Proposition 8 case, the court has several ways to reach an outcome that would strike down the California law while leaving intact many other state laws against gay marriage.

As an official in the Reagan administration, an appellate judge and, since 2005, as chief justice, Mr. Roberts has compiled a consistently conservative record.

Yet in his present role atop the federal judiciary, the chief justice repeatedly has demonstrated a concern for the preserving the Supreme Court's credibility in the delicate role it plays policing the boundaries of federal and state authority. That was perhaps no more evident than in last year's decision upholding the Patient Protection and Affordable Care Act, where he joined the court's four liberals to rescue President Obama's signature initiative from conservative challenges. While the chief justice rejected many of the administration's arguments, he ultimately decided the law must be upheld under precedents requiring the court to use "every reasonable construction" to avoid striking down an act of Congress.