News broke today that the U.S. Supreme Court has decided not to weigh in on the case of Kim Davis, who, a few years ago, tried to use religious freedom as an excuse to refuse to issue marriage licenses to same-sex couples—though it was her government job to do so as a former Rowan County, Kentucky clerk—even after the court’s ruling in Obergefell v. Hodges made same-sex marriage a constitutionally protected right.
That’s great, since it leaves in place the previous ruling, allowing two same-sex couples to move forward with lawsuits against Davis over her actions. Sadly, it also comes with some very troubling, if not unexpected, news: Two Supreme Court justices who supported turning the case away specified that they only did so because they don’t think it would provide the kind of straightforward justification to strike down the Obergefell decision that they’re looking for.
Justice Clarence Thomas wrote in the court’s decision, “This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari.” He continued, joined by Justice Samuel Alito,
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. Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws.
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. 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 also tried to defend Davis as someone whose whose “sincerely held religious beliefs,” her “traditional Christian values,” were labeled, through Obergefell, as “tantamount to invidious discrimination toward homosexuals.” That is, of course, absurd for every reason under the sun, which we’ve already talked to death over the years, and it’s exhausting that this is coming up again, but we all knew it was coming as Republicans push ahead with their plan to remake the court in a way that favors their terrible worldview.
What’s alarming, though, is the clear drive to completely undo the Obergefell deicision, with Thomas concluding,
Nevertheless, this petition provides a stark reminder of the consequences of Obergefell. 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. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.” 576 U. S., at 734 (THOMAS, J., dissenting).
If Republicans succeed in installing Amy Coney Barrett on the court—and it seems they will—it’s difficult to say what will happen and when the conservative justices’ ideal case to strike down marriage equality will come along, but it’s hard to believe they won’t try and succeed with six conservative justices, given that Obergefell was a 5-4 decision with the majority including two justices who are no longer on the court. Even if Joe Biden wins the 2020 election, marriage equality will be in peril without some major steps taken to protect it, possibly sending us back to, at best, the untenable days of state-by-state same-sex marriage laws.
(image: ANGELA WEISS/AFP/Getty Images)
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