This week, two United States supreme court justices wrote in defence of Kentucky law clerk, Kim Davis, who refused to issue marriage licences to same-sex couples, saying the court’s decision in 2015 to allow same-sex marriages had the potential to infringe on religious liberty, Slate reports.
“Davis may have been one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision,” Justice Clarence Thomas warned, “but she will not be the last.”
Justice Thomas and Justice Samuel Alto, who joined in the criticism, are conservatives known for being opposed to equal rights for the LGBTIQ community.
While they agreed to not hear Davis’ appeal, their comments on religious liberty and same-sex marriage have concerned LGBTIQ rights activists as it suggests they’ll revisit the landmark Obergefell versus Hodges case that allowed same-sex marriage in 2015.
Thomas and Alito stated they only declined to take Davis’ case because “it does not cleanly” raise religious freedom challenges to “the scope of our decision in Obergefell.” (In other words, Davis’ attorneys at Liberty Counsel, a fringe anti-LGBTQ law firm, failed to present a First Amendment claim.)
In a separate opinion, the two justices mounted a strenuous defence of Davis while belittling same-sex couples’ constitutional right to wed. Thomas wrote that this right does not actually exist—and that, in recognising it, the court implied that “those with sincerely held religious objections to same-sex marriage … espoused a bigoted worldview.”
The Supreme Court, Thomas continued, forced same-sex marriage “upon society through its creation of atextual constitutional rights,” which enabled “courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.” In Davis’ case, “Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals.” Thomas concluded, “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.”
Concerningly, should Amy Coney Barrett make it to the Supreme Court, it will tip overwhelmingly in the conservatives’ favour raising the possibility the 2015 decision that allowed same-sex marriage will be reversed.
In a 2016 speech, Barrett said Obergefell “was about who gets to decide whether we have same-sex marriage or not.” The dissenting justices weren’t anti-gay, Barrett explained, but rather believed that “it wasn’t for the court to decide” whether they should be allowed to marry. She called Obergefell “a ‘who decides’ question.”