Conservative justices come to same-sex marriage controversy with minds made up

At the Supreme Court, the conservative majority seems to have a new mantra that half way is no way.

From the beginning of oral arguments on Monday, it appeared the Supreme Court’s conservatives had come to the bench with their minds set. They sidestepped the lack of clear facts in the case, brushed off worst-case consequences and diminished past rulings that would seem to disfavor a Colorado website designer who has refused to serve same-sex couples.

Justice Samuel Alito was even prepared to invoke lines from Obergefell v. Hodges, the 2015 landmark that gave same-sex couples a right to marry, for the proposition that certain business owners can refuse gay couples.

He noted that the author of the opinion, the now-retired Justice Anthony Kennedy, had referred to “honorable” people who might object to same-sex marriage, and Alito suggested “religious objections to same-sex marriage” could be differentiated from other discrimination, for example, based on race.

Other justices on the right wing highlighted the expressive dimension of website designer Lorie Smith’s work, downplaying that she runs a commercial enterprise subject to the state’s public accommodation laws.

“You’re on your strongest ground,” Justice Amy Coney Barrett told Smith’s lawyer, Kristen Waggoner, “when you’re talking about her sitting down and designing and coming up with the graphics to customize them for the couple.”

Conservative justices seemed unpersuaded by the fact that, as liberal Justice Sonia Sotomayor pointed out, if they rule for Smith, “this would be the first time in the court’s history that it would say … a commercial business open to the public, serving the public, could refuse to serve a customer based on race, sex, religion or sexual orientation.”

The right-wing majority that coalesced with former President Donald Trump’s three appointments has shown a single-minded focus to transform certain areas of the law, notably those that touch on religious liberty.

Individual justices have made clear that they believe religion is under siege and that Christian views have been suppressed. They have ruled broadly, even when the facts of the case might suggest that believers have not been victimized.

Last session, the court by a 6-3 vote (the conservative majority against liberal dissenters) ruled in favor of a football coach who had been suspended by a Washington state public school district for praying at midfield after games.

The majority, in an opinion by Justice Neil Gorsuch, portrayed coach Joseph Kennedy’s conduct as modest and solitary, far from disruptive to players or people near the field. Dissenters contended the majority had misconstrued the facts of the case, ignoring how Kennedy’s behavior could affect students and breach the Constitution’s separation of church and state. Dissenters took the rare step of including in their opinion photographs of Kennedy surrounded by kneeling players in prayer.

In the most consequential dispute of last session, over a Mississippi ban on abortions at 15 weeks of pregnancy, which carried some religious overtones, conservative justices went beyond the legal question presented to unflinchingly reverse a half century of precedent, striking down the 1973 Roe v. Wade case that first made abortion legal nationwide.