Photo illustration by SCOTUS, Jorge Rivas/Fusion
Photo illustration by SCOTUS, Jorge Rivas/Fusion

If things go a certain way at the Supreme Court this spring, gay marriage will be legal in every state by the time the June pride parades roll by.


How will the Justices vote? We don’t know. But based on their past rulings, some of them are totally gayer than others.

So we ranked them—roughly—by the gay-friendliness of their past decisions or public statements plus their Martin Quinn score, a project by two professors that tracks judges’ ideologies.



1. Justice Ruth Bader Ginsburg

Supreme Court Ginsburg

They don’t call her Notorious R.B.G. for no reason. Justice Ginsburg is the most progressive amongst the Supreme Court justices, according to her Martin-Quinn score. She started her career in the ACLU’s Women’s Rights Project fighting for gender equality. And if that’s not enough in September 2013 she became the first Supreme Court member to officiate a same sex wedding. Then a week later she married a second gay couple. She also supported getting rid of the Defense of Marriage Act (DOMA), which in 1996 barred same-sex marriages from being recognized under federal law.

And she’s stated she wants to be a diva.

“If I had any talent God could give me, I would be a great diva,” Ginsburg said last September  at the University of Minnesota Law School. At that same reception, Ginsburg marveled at how quickly public opinion shifted on same sex marriage.


“Having people close to us who say who they are — that made the attitude change in this country,” Ginsburg said at the law school last September.

2. Justice Sonia Sotomayor

Sonia Sotomayor

When asked about gay marriage during her confirmation hearing, Justice Sotomayor said she understands “the seriousness of same-sex marriage” and she would keep a "completely open mind."

Justice Sonia Sotomayor questioning during California’s “Prop. 8” case indicated that she is critical of barring gay and lesbian couples from marrying. According to the Martin Quinn score she’s the second most liberal Supreme Court justice.


3. Justice Stephen G. Breyer

Stephen G. Breyer

Justice Breyer has remained tight lipped on same-sex marriage issues. But he’s the third most progressive Justice on the Martin Quinn chart.

He sided against DOMA in 2013.

4. Justice Elena Kagan

Elena Kagan

Kagan officiated a same-sex wedding in Maryland for her former law clerk and his husband last September, so, that’s all you gotta know.

5. Justice Anthony Kennedy

Anthony Kennedy

Justice Kennedy authored the opinion in the case that struck down Texas’s ban on sodomy, but nobody knows how he’ll vote when it comes to gay marriage for the entire country.

“Justice Kennedy is the swing vote on this court, and I’m betting he’ll be the swing vote in this case,” Erwin Chemerinsky, the dean of the School of Law at the University of California, Irvine, told the Wall Street Journal.


In 1996 Kennedy wrote the majority opinion in Romer v. Evans that struck down Colorado’s constitutional amendment forbidding local gay rights legislation. In 2003, he authored the opinion in Lawrence v. Texas, which struck down that state’s ban on sodomy. In United States v. Windsor, Kennedy wrote the Defense of Marriage Act  imposed “a disadvantage, a separate status” and “a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.”

Sounds totally gay, but Kennedy should still be considered questioning—he’s also ruled in favor of allowing states to determine their own laws, separate from federal influence.


6. Chief Justice John G. Roberts Jr.

John Roberts Jr.

Justice Roberts is a conservative appointed by President George W. Bush in 2005.

But not that conservative, because the Chief Justice invited his lesbian cousin to the 2013 U.S. Supreme Court hearing on California’s voter approved Proposition 8 same-sex marriage case, in special seating reserved for his family members and guests.


Chief Justice Roberts went out of his way and was alone when he dissented in the “Defense of Marriage Act” decision. Roberts noted that “without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests,” he would have to vote to uphold the law.

NOT SO GAY:  the three arch-conservatives

7. Justice Antonin Scalia

Antonin Scalia

Justice Scalia has argued elected officials should decide on gay marriage, not the courts. He’s the third most conservative justice according to the Martin Quinn score.

Scalia has provided a glimmer of hope in support of gay marriage, as has pointed out. Scalia has basically said that it would be difficult to rule against same sex marriage while holding to the precedence that DOMA set.


8. Justice Samuel Anthony Alito, Jr

Antonin Scalia, John G. Roberts, Anthony M. Kennedy, Stephen Breyer, Smauel Alito Jr.

Justice Alito is the second most conservative justice according to the Martin Quinn score.

In a dissenting opinion he filed with Justice Clarence Thomas, Alito wrote “the Constitution does not guarantee the right to enter into a same-sex marriage.” So that’s that.


9. Justice Clarence Thomas

Clarence Thomas

Justice Clarence Thomas has definitely not officiated any gay weddings. But he did proudly officiate conservative commentator Rush Limbaugh’s third wedding.

He clocks in as the most conservative justice ever to serve in the Supreme Court, according to the Martin Quinn score.


He’s stated the Constitution does not guarantee the right to enter into a same-sex marriage. Thomas also joined his fellow conservatives colleagues in voting that the court shouldn’t rule on gay marriage.

So don’t count on Thomas to rule in favor of allowing same-sex couples to get married.


(All images: AP)

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