During this week's Supreme Court oral arguments on same-sex marriage, Chief Justice John Roberts asked a question that could put him on the side of the liberal justices, says MoFo appellate litigation partner Marc Hearron, who was present at the Court for the arguments. Roberts questioned whether there was a "straightforward question of sexual discrimination" rather than an issue of sexual orientation (an approach NYU Law prof Kenji Yoshino touched on last month), since, for instance, a man is able to marry a woman, but a woman is not. Justice Antonin Scalia also showed some signs of voting "yes" on the second question the Court is considering, seeming to agree that a straightforward reading of the Full Faith and Credit Clause would require states to recognize existing same-sex marriages performed in other states.

It was also striking how much the tone of the argument has changed since the days of Lawrence v. Texas, Marc says. It has shifted from from a moral opposition (which did not come up this time around), to the states straining to come up with ways to deny the right to marry. On the child-rearing argument that has been used by same-sex marriage opponents, Justice Kennedy—the likely swing vote—said that it actually supports the right to marry. Marc is one author of an amicus brief on behalf of Harold Koh and other international law and human rights lawyers supporting the right to marry.