Thomas, Alito Urge Supreme Court To ‘Fix’ Decision Legalizing Marriage Equality

Topline

Justices Clarence Thomas and Samuel Alito decried the U.S. Supreme Court’s decision allowing same-sex marriage and its “cavalier treatment of religion” in a decision Monday declining to hear Kentucky clerk Kim Davis’ case, raising the specter that the court could revisit the issue of marriage equality as it potentially becomes increasingly conservative with Judge Amy Coney Barrett’s nomination.

Rowan County Clerk of Courts Kim Davis waves to a crowd of her supporters at a rally in front of the … [+] Carter County Detention Center on September 8, 2015 in Grayson, Kentucky. (Photo by Ty Wright/Getty Images)

Getty Images Key Facts

Thomas and Alito claimed Obergefell v. Hodges, the 2015 decision that officially legalized same-sex marriage, “threaten[s] religious liberty,” saying that because of the decision, “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 antidiscrimination laws.”

Davis, a Christian clerk who gained notoriety and briefly landed in jail in 2015 for refusing to issue marriage certificates to same-sex couples, was “one of the first victims of this Court’s cavalier treatment of religion” in the Obergefell decision, the justices said, though they agreed with the decision not to hear her case.

The justices argued that the Supreme Court should not have “force[d]” the issue of marriage equality “upon society”—saying that if the issue had instead been resolved through state legislation, “they could have included accommodations for those who hold these religious beliefs”—and called on the court to “fix” the issues that the decision has presented.

Obergefell v. Hodges was decided in a 5-4 vote, and only three of the justices in the majority—Justices Elana Kagan, Sonia Sotomayor and Stephen Breyer—are still on the Supreme Court bench.

Five of the eight justices currently on the court are viewed as leaning conservative, and should current Supreme Court nominee Judge Amy Coney Barrett be confirmed by the U.S. Senate, the court would have a 6-3 conservative majority, increasing the likelihood that the court could revisit or overturn the Obergefell decision.

Crucial Quote

“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,” Thomas wrote in the opinion, which Alito joined. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”

Key Background

Democrats fear the death of Justice Ruth Bader Ginsburg and the potential confirmation of Barrett, who has a history of social conservatism, will usher in a series of consequential Supreme Court decisions that could affect everything from health care to abortion. The Supreme Court will hear a case deciding whether the Affordable Care Act should be overturned November 10, and the court will hear arguments November 4 in a religious liberty case concerning whether a Catholic agency that receives taxpayer funding can refuse to accept same-sex couples as foster parents. Barrett could potentially participate in both cases, as Senate Republicans rush to quickly confirm her to the Supreme Court, though the current Covid-19 outbreak among Senate Republicans could potentially slow down her nomination. The court also agreed Friday to hear a case concerning oil companies and climate change lawsuits, as well as an Arizona voting rights case that could potentially further dismantle the Voting Rights Act, which the Supreme Court previously struck down aspects of in 2013. GOP officials in multiple states have also already asked the Supreme Court to weigh in on specific mail-in voting rules ahead of the November election—with more cases potentially to come—and President Donald Trump has suggested the court could potentially weigh in on post-election conflicts that could impact the results of the presidential election.

Further Reading

Amy Coney Barrett On Hold? After 3 GOP Senators Get Covid-19 A Swift Confirmation Could Be In Jeopardy (Forbes)

Some States Move To Protect Abortion Rights Ahead Of Possible Barrett Confirmation (Forbes)

South Carolina Asks Supreme Court To Weigh In On Mail-In Voting Rule (Forbes)

Supreme Court to Hear Cases on Voting Rights and Climate Change (New York Times)