Two U.S. Supreme Court justices have called for the overturning of same-sex marriage laws, after the court rejected an appeal from Kim Davis, the Kentucky clerk who refused to issue same-sex marriage licenses back in 2015 due to her personal religious beliefs opposing homosexuality.
On Monday, the Court rejected an appeal from lawyers representing Davis, after a lower court decision found that some of the couples who had been denied licenses had a right to pursue a lawsuit against her.
In their dissent, Justices Samuel Alito and Clarence Thomas argued that the court had bypassed the democratic process in its 2015 Obergefell decision which legalized marriage equality nationwide.
Davis, the former clerk for eastern Kentucky’s Rowan County, refused to issue licenses to any couple, straight or gay, until the commonwealth allowed her to remove her name and title from any licenses issued by her office, lest she be seen as “endorsing” same-sex marriage. (The legislature later removed clerk’s names and titles from all marriage licenses issued in the commonwealth.)
Her lawyers argued that the lawsuit — brought against Davis by two straight couples and two gay couples who were unable to obtain licenses from her office — should be dismissed on the grounds that she, as a public servant acting on the government’s behalf, was shielded from civil lawsuits under a legal doctrine known as qualified immunity. But a federal judge found that the couples could proceed with their lawsuit, a finding that was upheld by the 6th U.S. Circuit Court of Appeals.
Because the Davis case was not a “clean vehicle” for challenging the Supreme Court’s 2015 decision in Obergefell v. Hodges, in which the court overturned all bans on same-sex marriage, Thomas and Alito agreed with their fellow justices that Davis’s appeal should be dismissed. That means the lawsuit against her will be allowed to move forward.
But Thomas, joined by Alito, penned a scathing dissent arguing that the Supreme Court had overstepped its bounds in 2015.
“In Obergefell v. Hodges, the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text,” Thomas wrote. “Several members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs. The Court, however, bypassed that democratic process.
“Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often ‘decent and honorable,’ the Court went on to suggest that those beliefs espoused a bigoted worldview. The dissenting Justices predicted that ‘[t]hese . . . assaults on the character of fairminded people will have an effect, in society and in court,’ allowing ‘governments, employers, and schools’ to ‘vilify’ those with these religious beliefs ‘as bigots,'” Thomas continued, quoting from Alito’s dissent in the Obergefell case. “Those predictions did not take long to become reality.”
Thomas and Alito’s dissent casts Davis as a martyr for religious liberty, writing: “Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.” They contend that those with sincerely-held beliefs opposing same-sex marriage will find it “increasingly difficult to participate in society without running afoul of” the court’s decision in Obergefell.
“It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law,” Thomas’s dissent continues. “But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.”
Thomas’s dissent also bemoans the fact that some people have labeled opponents of same-sex marriage as “bigots” because of their refusal to amend their religious beliefs to fit prevailing views of marriage as a constitutional right for LGBTQ people.
“By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” the dissent concludes. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.'”
The stated desire of at least two of the court’s justices to overturn same-sex marriage laws highlights the urgency of the coming fight over the nomination of Amy Coney Barrett to replace the recently deceased Justice Ruth Bader Ginsburg, part of the court’s liberal wing, given Barrett’s embrace of an “originalist” or “textualist” view of the law.
The Human Rights Campaign denounced the justices’ dissent in a statement while warning that the confirmation of Barrett would potentially threaten same-sex marriage rights for the next two generations.
“This morning, Justices Thomas and Alito renewed their war on LGBTQ rights and marriage equality, as the court hangs in the balance,” HRC President Alphonso David said in a statement. “The language related to this denial of certiorari proves yet again that a segment of the Court views LGBTQ rights as ‘ruinous’ and remains dead set against protecting and preserving the rights of LGBTQ peoples.”
David warned that a 6-3 conservative majority on the Supreme Court would likely “water down” marriage rights for same-sex couples by allowing exemptions that would deny them legal status, refuse them certain legal rights, such as medical decision-making, or allow businesses to actively deny goods or services to them
“Our love is valid, our love is equal, and our rights must be,” David added. “Amy Coney Barrett has openly claimed to hold similar views to Scalia, who Thomas and Alito channel with this opinion. That fact, along with Barrett’s ties to anti-equality extremist groups who aim to criminalize LGBTQ relationships in the United States and abroad, shows that Barrett will only embolden these anti-equality extremist views on the Court.”
The American Civil Liberties Union also blasted the justices’ dissent.
“It is appalling that five years after the historic decision in Obergefell, two justices still consider same-sex couples less worthy of marriage than other couples,” James Esseks, the director of the ACLU’s LGBT & HIV Project, said in a statement.
“When you do a job on behalf of the government — as an employee or a contractor — there is no license to discriminate or turn people away because they do not meet religious criteria. Our government could not function if everyone doing the government’s business got to pick their own rules,” Esseks continued. “That’s exactly what’s at stake in a case that will be argued on Nov. 4 — Fulton v. City of Philadelphia. We will fight against any attempts to open the door to legalized discrimination against LGBTQ people.”
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