What Each Supreme Court Justice Has Said About Gay Marriage

As the Supreme Court hears the case of Colorado Christian web designer Lorie Smith, who claims she has a right not to serve same-sex couples under the First Amendment, many have raised concerns over the fact that the court's current conservative majority will lead to a ruling in support of the plaintiff in 303 Creative LLC v. Elenis.

Four years ago, the court voted in favor of Jack Phillips, a Colorado Christian baker who had refused to make a cake for a same-sex couple's wedding in breach of the state's anti-discrimination law. The 7-2 decision was made on narrow grounds, stating that the Colorado Civil Rights Commission did not employ religious neutrality, violating Phillips' rights to free exercise.

Now, the justices are looking at a similar case questioning the reach and limits of Colorado's Anti-Discrimination Act—but the consequences could have a nationwide impact.

Here, Newsweek looks at how each of the Supreme Court's Justices stands on same-sex marriage, as demonstrated during their careers.

Newsweek reached out to the Supreme Court for comment.

What Has John G. Roberts Said About Gay Marriage?

In 2015, when the Supreme Court ruled on the landmark Obergefell v. Hodges, the case which recognized that the fundamental right to marry is constitutionally guaranteed to same-sex couples, Justice John G. Roberts was in dissent.

Despite saying that the 5-4 Supreme Court's decision was a reason to celebrate for those supporting same-sex marriage, Roberts stressed that the U.S. Constitution does not take a position on "any one theory of marriage."

In his dissent, he wrote that "five lawyers" had "closed the debate and enacted their own vision of marriage as a matter of constitutional law," adding that "stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."

Roberts has since voted several times in support of the recognition of gay marriage and against the discrimination of same-sex couples.

In 2020, when the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects LGBTQ Americans from workplace discrimination, the conservative justice was among the 6 to 3 majority.

That same year, the Supreme Court apparently unanimously rejected an appeal from a former Kentucky county clerk who refused to provide marriage licenses to same-sex couples based on her religious beliefs in Miller v. Davis.

Last year, Roberts was one of the six justices who declined to hear an appeal by a Washington state florist who refused service to a same-sex couple, citing her religious beliefs.

What Has Clarence Thomas Said About Gay Marriage?

After the Supreme Court announced its 5-4 decision in Obergefell, Justice Clarence Thomas wrote a dissenting opinion, joined by the late Justice Antonin Scalia, accusing the majority of the judges of roaming "at large in the constitutional field guided only by their personal views as to the fundamental rights protected by that document," straying from the Constitution.

Thomas said that he could never agree with the decision, adding that the court had no right to advance the dignity of same-sex couples as "dignity is a natural right that is innate within every person" and cannot be bestowed by the government.

Through the years, Thomas has remained consistent with his dissenting opinion from Obergefell. When he joined the other justices in October 2020 in denying an appeal from Kentucky county clerk Kim Davis, he still wrote a separate opinion reiterating his dissent from the landmark 2015 case.

In July 2021, he was one of three justices who voted to hear the case of the Washington florist who had refused to serve a same-sex couple.

When the Supreme Court overturned Roe v. Wade last summer, Thomas explicitly asked in a concurring opinion for Obergefell to be revisited.

What Has Samuel A. Alito Said About Gay Marriage?

In 2015, as the Supreme Court was discussing Obergefell, Justice Samuel A. Alito expressed his hesitancy to recognize same-sex marriage as a right supported by the Constitution.

"How do you account for the fact that, as far as I'm aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?" he said.

Alito later dissented from the 5-4 ruling, joined by Scalia and Thomas, who had written their own dissents (Roberts didn't join Alito's dissent, nor Alito joined Roberts'). In his dissent, Alito wrote that the Due Process Clause protects only rights and liberties that are "deeply rooted in this Nation's history and tradition," adding that any right to same-sex marriage would not fall under this definition.

"Most Americans—understandably—will cheer or lament today's decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority's claim of power portends," Alito wrote, denouncing that all those who disagreed with gay marriage ran the risk of "being labeled as bigots."

In 2020, he was in dissent again after the court's decision to ban discrimination against gay and transgender employees in the workplace. The following year, Alito was among the three judges who granted the Washington florist's petition for a Supreme Court review of her case.

Alito has appeared sympathetic with the case of the Colorado web designer refusing to serve same-sex couples, reminding the court on Monday that the majority opinion in Obergefell wrote that there are "honorable" people who disagree with same-sex marriage.

What Has Sonia Sotomayor Said About Gay Marriage?

During his 2008 presidential campaign, former President Barack Obama promised to nominate justices who had "the heart, the empathy, to recognize what it's like to be a teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."

One year later, he nominated Justice Sonia Sotomayor.

In 2015, when the Supreme Court was ruling over Obergefell and approaching the question of whether allowing same-sex marriage constituted a threat to individual liberty, Sotomayor vocally defended gay marriage, saying: "I'm sorry. Nobody is taking that away from anybody."

Sotomayor was among the justices who in 2020 voted to expand Title VII of the Civil Rights Act to include gay and transgender employees in a decision that was brought forward by three cases—Bostock v. Clayton County, Georgia; Altitude Express Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.

Last year, she was among the six justices who refused to listen to the appeal of the Washington florist who claimed she had a constitutional right to refuse to create flower arrangements for same-sex weddings.

In the past few days, as the Supreme Court hears Smith's case, Sotomayor pressed a lawyer for the Colorado web designer about how pitting free speech and faith against LGBTQ rights might affect other rights too—including interracial marriage.

"What's the limiting line of yours?" Sotomayor asked Kristen Waggoner. "How about people who don't believe in interracial marriage or people who don't believe disabled people should be married? Or about people who don't believe that the disabled should get married? Where's the line?"

"I choose to serve whom I want to disagree with, their personal characteristics like race or disability? I can choose not to sell to those people?"

The lawyer said she objected, saying that she was "not saying that at all."

What Has Elena Kagan Said About Gay Marriage?

In 2014, the year before Obergefell, Justice Elena Kagan—nominated by Obama in 2010—officiated her first same-sex marriage in a Maryland ceremony for her former law clerk and his husband.

Kagan has a history of supporting LGBTQ rights in her career that precedes her time at the Supreme Court—during her deanship at Harvard Law School she upheld a decades-old policy barring military recruiters from campus because she said the military's "Don't Ask, Don't Tell" policy discriminated against LGBTQ individuals. But her position on LGBTQ rights issues has not always been straightforward.

In 2015, she voted with the majority of judges to recognize the fundamental right to marry same-sex couples. Last year, she voted to turn down the appeal of the Washington State florist.

Questioning web designer Smith during the hearing for 303 Creative LLC v. Elenis on Monday, Kagan asked the Colorado woman's lawyer how designing a hypothetical website for a same-sex couple's wedding would harm her compared to designing a website for a straight couple's ceremony.

While other justices have appeared sympathetic to Smith, Kagan seemed more skeptical of the web designer's claims.

What Has Neil Gorsuch Said About Gay Marriage?

In 2017—the same year he was nominated by Trump—Justice Neil Gorsuch was in dissent, together with Thomas and Alito, from a court's decision to overrule the Arkansas Supreme Court's decision to deny same-sex married parents the same right to appear on their child's birth certificate.

In his dissenting opinion from Pavan v. Smith, Gorsuch claimed that the precedent of Obergefell was limited to the recognition of same-sex marriage and did not extend to the constitutionality of biology-based birth certificate rules.

In 2021, he joined Thomas and Alito in voting to hear the Washington florist's appeal.

Gorsuch has appeared somewhat supportive of the claims of the Colorado web designer discussed in 303 Creative LLC v. Elenis, saying that her objection would not be based on the status of the same-sex couple, but instead, on the message that the businessperson did not want to send through their work.

The question isn't the "who," but the "what," Gorsuch said on Monday.

What Has Amy Coney Barrett Said About Gay Marriage?

During her Senate hearing in 2020 after being nominated by Trump, Justice Amy Coney Barrett—a devout Christian—said that rulings protecting LGBTQ rights such as Obergefell were "binding precedents" that she meant to "faithfully follow if confirmed."

Yet many LGBTQ activists were deeply concerned about her nomination, and several called for Barrett not to be confirmed, saying that her faith would lead her to rule against LGTBQ rights in future cases.

That same concern is still relevant, as many have urged the conservative justice to recuse herself from 303 Creative LLC v. Elenis, after members of the secretive Christian group People of Praise—of which Barrett is reported to be a member—said that her "lifelong and continued" affiliation with the group would make her too biased to fairly judge the case.

In 2021, Barrett was not among the three conservative justices who granted a hearing to the Washington florist refusing to serve a same-sex couple. But during the first days of the case of 303 Creative LLC v. Elenis, the judge has appeared warm to Smith's cause, telling her lawyer that her "strongest ground" is that the designer's work is "custom."

What Has Brett M. Kavanaugh Said About Gay Marriage?

In 2018, when former president Donald Trump nominated Justice Brett M. Kavanaugh to the Supreme Court, the American LGBTQ advocacy group Human Rights Campaign launched a "Stop Kavanaugh" campaign saying that the judge posed "a direct threat to LGBTQ equality," among others.

In the same year, the advocacy group People for the American Way urged to stop Kavanaugh's confirmation, writing that "as far as anyone can tell, in his long career he has never ruled on or written about legal issues related to LGBTQ people. With Brett Kavanaugh, no news is not good news for LGBTQ people."

When questioned by then-Senator Kamala Harris about whether he agreed with the Obergefell's decision, the conservative judge refused to answer the question—an evasiveness that many activists found concerning.

But since joining the court, Kavanaugh has voted on LGBTQ issues on multiple occasions.

In 2020, when the court voted to expand Title VII of the Civil Rights Act to protect the rights of LGBTQ employees, Kavanaugh wrote a dissent saying that discrimination based on sexual orientation and on sex were two different things and that Congress should be voting on any changes to the relevant law, not judges.

The following year, the Trump-nominated justice was among the six judges who voted to refuse an appeal by the Washington florist.

What Has Ketanji Brown Jackson Said About Gay Marriage?

Justice Ketanji Brown Jackson, who was nominated by President Joe Biden in February, was asked about same-sex marriage on the second day of her confirmation hearings by Texas Republican Senator John Cornyn, who questioned her about Obergefell v. Hodges.

"Isn't it apparent that when the Supreme Court decides that something that is not even in the Constitution is a fundamental right, and no state can pass any law that conflicts with the Supreme Court's edict, particularly in an area where people have sincerely held religious beliefs, doesn't that necessarily create a conflict between what people may believe is a matter of their religious doctrine or faith and what the federal government says is the law of the land?" Cornyn asked her.

"Well, senator, that is the nature of a right," Jackson responded. "That, when there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs."