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In 2015, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have the constitutional right to marry.
On Monday, the very first day of the Supreme Court term, Justices Clarence Thomas and Samuel Alito said, essentially, “slow your roll.”
The statement, written by Thomas and joined by Alito, came in a case called Davis v. Ermold that stems from the kerfuffle in Kentucky involving Rowan County clerk Kim Davis. Davis became something of a cause celebre in 2015 when she cited “God’s authority” as a reason for refusing to issue marriage certificates not only to same-sex couples but also to different sex couples. Essentially, she told people who lived in Rowan County who wanted to obtain marriage licenses to go to a neighboring county for one. Davis wanted to avoid accusations that she was discriminating against same-sex couples and thought that refusing to issue any marriage licenses at all was a neat solution to her problem. It wasn’t.
Even after she was ordered to resume providing marriage licenses, she still refused. Davis’ stalwart refusal to do her job even landed her in jail for contempt of court, which increased her celebrity among Christian evangelicals because of course it did.
It also landed her on the business end of a lawsuit filed by two same-sex couples. After the lower courts ruled that Davis was violating the couples’ constitutional rights, she filed an appeal with the Supreme Court asking them to toss the case.
The good news is that the Court declined to take up the case, which means that the lawsuit against her can proceed.
The bad news is that Justices Thomas and Alito took the opportunity to fire a shot across the bow at Obergefell v. Hodges in a statement that suggests they would be all too happy to strip same-sex couples of the right to marry—if only the right case were presented to the Court. The two justices all but double-dog dared same-sex marriage naysayers to put a case before the Supreme Court that would allow them to reconsider its landmark ruling. (A First Amendment case, if you please, so that the rights of same-sex couples to marry can be pitted against the rights of evangelical Christians to enshrine their bigotry against same-sex marriage into law.)
And should that happen after Amy Coney Barrett ascends to the Supreme Court—if she ascends to the Court—the anti-LGBTQ conservative justices will have a supermajority that could strip LGBTQ people of a constitutional right they were granted a mere five years ago.
Thomas is obviously still pissed about the Obergefell decision. In his statement in Davis v. Ermold, he writes that Obergefell will continue to have “ruinous consequences for religious liberty” because the Court chose to privilege a “novel constitutional right over the religious liberty interests explicitly protected in the First Amendment.”
A novel constitutional right. Yikes.
He smugly notes that he and the other dissenters in Obergefell (Alito, Antonin Scalia, and Chief Justice John Roberts) were correct in their prediction that the ruling “would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman.”
Thomas manages to cast people like Kim Davis—who felt entitled to keep her job as a government employee while ignoring the law barring states (and state employees) from discriminating against LGBTQ people—as victims. In his estimation, people like Davis are “fair-minded people” who simply oppose same-sex marriage on religious grounds. They’re not people who have an animus toward LGBTQ people. (Yeah, right.)
By way of example, Thomas points out that one of the appellate judges who heard Davis’ case described her religious beliefs as “anti-homosexual animus.” (They are.) According to Thomas, characterizing these “fair-minded people” who oppose same-sex marriage as bigots would allow “governments, employers, and schools to vilify those with these religious beliefs as bigots.” (Give me a break.)
He then complains that “Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals.”
This is a truly remarkable statement.
In Thomas’ view, public officials should be permitted to hide behind their religious beliefs to avoid complying with the law even if those religious beliefs infringe on other people’s constitutional rights. Were the Court to adopt Thomas’ view, it would be a drastic and alarming expansion of religious liberty in favor of the religious right. And it would eviscerate the separation of church and state, which is critical to protecting the religious liberties of people who aren’t Christian.
In a pre-Trump America, Thomas’ outrageous statement would have merely prompted me to roll my eyes. But we’re in Trump’s America now. Anthony Kennedy, the man who authored the majority opinion in Obergefell and was a strong supporter of LGBTQ rights, is no longer on the bench, having been replaced by Brett Kavanaugh—a man who, during his confirmation hearings, couldn’t bring himself to say yes when Kamala Harris asked him if Obergefell was rightly decided.
And Ruth Bader Ginsburg, a reliable vote for LGBTQ rights, is likely to be replaced by Barrett, who is hostile to LGBTQ rights and even delivered a paid speech for Alliance Defending Freedom, which the Southern Poverty Law Center has designated an anti-LGBTQ hate group. After first protesting that she had failed to vet the group, Barrett ultimately refused to recognize ADF as a hate group, calling its designation a matter of “public controversy.”
As for Neil Gorsuch, he’s no ally to the LGBTQ community, notwithstanding his surprising ruling in Bostock v. Clayton County barring employers from discriminating on the basis of sexual orientation and gender identity.
In 2017, Gorsuch dissented from a ruling requiring states to list same-sex parents on birth certificates, arguing that Obergefell was limited to same-sex marriage and did not extend to a “biology based birth registration regime.” Gorsuch also signed on to Thomas’ 2018 opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission—the case involving a baker who refused to bake a cake for a same-sex couple—in which Thomas railed against same-sex marriage and complained that Obergefell was being used to “vilify Americans who are unwilling to assent to the new orthodoxy.”
Such complaints are overwrought: Anti-LGBTQ people are free to express their anti-gay animus. That is their First Amendment right. They cannot, however, hold public office and discriminate against LGBTQ people; that turns personal bias into state-sanctioned bias.
But Thomas and Alito are champing at the bit when it comes to ending same-sex marriage. With the right case and a supermajority of justices handpicked and groomed by the Federalist Society, they may get their wish.