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Kennedy’s Retirement Hands Conservatives Their Best Shot To Weaken Same-Sex Marriage Rights

"It's only a matter of time until one of these cases comes back to the court.”

Posted on June 27, 2018, at 5:16 p.m. ET

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Minutes after Supreme Court Justice Anthony Kennedy announced his retirement Wednesday, the conservative legal powerhouse Alliance Defending Freedom blasted out a lengthy statement criticizing Kennedy’s votes on LGBT and abortion rights — but predicting his replacement could change all of that.

"He deeply disappointed many Americans with his constitutional jurisprudence favoring abortion and same-sex marriage," said ADF President Mike Farris, who also argued in 2003 at the Supreme Court that gay sodomy should be a jailable crime.

Meanwhile at the Heritage Foundation, a stone's throw from the Senate office buildings, staff cherished an opening to reshape the court and pave new ground where Kennedy had blocked their path.

Appointed by former president Reagan, Kennedy had become the court’s regular “swing vote” — he agitated Christian conservatives when he wrote the landmark same-sex marriage ruling in 2015, and since then, he's proven a frustrating bulwark for gay rights.

"Kennedy would naturally feel protective of the decision that he authored, and it was a signature of his jurisprudence," Elizabeth Slattery, a legal fellow at the Heritage Foundation, told BuzzFeed News shortly after his announcement.

"It's only a matter of time until one of these cases comes back to the court, and it could be that Justice Kennedy didn't want to be there for that big issue,” she said.

One of those cases was at the Supreme Court this year — the high-profile lawsuit involving a Christian baker, represented by ADF, who turned away a gay couple getting married.

ADF had hoped the case, like its cases involving a florist and calligrapher, could limit how gay couples celebrate their marriage. Gay couples may be able to marry legally, the group argued, but businesses could deny them the accessories of that union: flowers, custom cakes, invitations, or more.

In authoring the court's majority opinion, however, Kennedy avoided the big constitutional matters. He ruled for the baker on narrow grounds, at the same time insisting that gay couples, like religious shopkeepers, deserve the right to be free from discrimination.

“We respectfully disagree with those decisions where Justice Kennedy created ‘rights’ not found in or intended by the United States Constitution,” said ADF’s Farris.

But Farris, once a never-Trumper, is cooing now, thanks to Trump.

"ADF looks forward to the president’s nomination of a person to replace Justice Kennedy on the Supreme Court who will uphold the First Amendment and the original public meaning of the Constitution," he said.

Likewise, Slattery added in a phone call, "I think it's an incredible opportunity to place another justice in the mold of Neil Gorsuch on the Supreme Court." Heritage Foundation has been among the leading groups advising Trump on court nominees, and Slattery said the group plans to hold events and press the administration to appoint another justice like Gorsuch in the months ahead.

The optimism among the Christian right isn't necessarily that the court would quickly reverse its 2015 marriage ruling in Obergefell v. Hodges — though a confluence of events, such as conflicting state laws and new challenges in separate federal circuits, could persuade enough of the justices to consider a challenge.

Rather, in Kennedy's absence, a conservative majority could be eager to approve the cases that allow business owners to refuse service or a county clerk to decline a marriage license, making marriage for same-sex couples difficult — much like state legislatures have sought to make it increasingly onerous to obtain an abortion.

As BuzzFeed News has reported, Christian conservatives seek to copy the anti-abortion playbook and apply it to the marriage ruling.

Kennedy’s retirement could give them their chance.

“Everything the pro-life movement did needs to be done again, now on this new frontier of marriage,” Ryan T. Anderson, a researcher at the Heritage Foundation, wrote in Truth Overruled: The Future of Marriage and Religious Freedom.

With a solidly conservative majority, the Supreme Court could affirm state laws that allow taxpayer-funded adoption agencies to reject applicants, including gay couples and divorcees, based on their religious objections. Or the court could uphold a broad Mississippi law that protects those who discriminate on the basis of same-sex marriage in employment, business transactions, housing, and issuing marriage licenses.

Slattery wants the court to overturn the abortion ruling of 1973, Roe v. Wade, completely, she said. "I don't think Roe will be overturned in the next term, but I think they could chip away at the holding."

But she wasn't willing to go that far with marriage, adding, "I haven't thought about that enough."

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