Neil Gorsuch on Same-Sex Marriage

Neil Gorsuch’s academic writings before joining the Supreme Court revealed skepticism regarding a constitutional right to same-sex marriage, suggesting he thought such a right was not explicitly protected and that the issue should be resolved through elections or legislatures rather than the courts. In a 2005 op-ed, he criticized liberals for relying on the courtroom to effect their social agenda on issues like gay marriage, suggesting this circumvented the democratic process. His 2004 doctoral dissertation, influenced by a philosophy critical of autonomy rights in intimate matters, also contained language marshaling evidence against the legal doctrine that paved the way for marriage equality, citing examples that grouped same-sex marriage with other controversial activities.

Since joining the Court, his actions reflect a complex stance; he joined the majority in the 2020 Bostock employment decision, which benefited LGBTQ people, yet he has also sided with justices seeking to narrow marriage equality precedent in other contexts. For instance, he dissented from a ruling that required equal treatment for same-sex married parents on birth certificates and voted to hear a case involving a florist refusing service based on religious objections to same-sex marriage. While serving as an appellate judge, he was bound by Supreme Court precedent, but his current role allows him to engage with arguments seeking to limit or overturn marriage equality protections, particularly when weighed against religious liberty claims.