The concerns being raised over the recent Thomas-Alito Manifesto (which will occasionally be referred to as a dissent to the cert denial in Davis v. Ermold) are well-founded.
Should Justices Clarence Thomas and Samuel Alito find three seat-holders of like prejudices, Obergefell v. Hodges will disappear as Supreme Court precedent.
Anyone who has any doubt about that should seek an objectivity check.
Despite being the end result of institutionalized privileging of marriage equality by cis gays over the more pressing needs of more LGBTQ people than will ever make direct use of the 2015 decision, the existence of Obergefell v. Hodges is a good thing. And its erasure will be a bad thing.
And it will be just the beginning.
For that is the problem to be seen with the concerns over the Thomas-Alito Manifesto: The alarm isn’t loud enough.
“Several Members of the Court noted that [Obergefell] would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman,” Thomas wrote. “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.”
On the surface, that seems almost reasonable.
At least in tone.
But pause and think about it.
What “accommodation” would ever satisfy an elected public official, holding a position with a certain set of legally mandated duties, who demands the right to selectively perform those duties where certain members of the citizenry are involved while also demanding the right to collect her full salary?
What Kim Davis wanted was not an “accommodation.” It is a “special right.”
Remember “Equal Rights, Not Special Rights”? Anti-gay forces loved chanting that when they were promoting monstrosities such as Colorado’s Amendment 2.
And recall that a hate group in Maine even adopted it as their name when they attacked the state’s pro-LGBTQ laws – not just marriage, but its anti-discrimination laws.
Oh, and the group also attacked the criminal code for not having criminal provisions against same-sex sexual activity.
Bear in mind that all of the laws that group sought to erase were enacted by that democratic process.
Kim Davis’s assertion is that her deeply held beliefs are rooted in a certain interpretation of Christian texts, not the actions of the Kentucky General Assembly. Not that that legislative body is likely to do so any time soon, but should we believe that Davis truly would raise no fuss at all if it enacted marriage equality?
So the question becomes not “What ‘accommodation’ would have satisfied Kim Davis?” but rather “Why should any of us believe that any form of ‘process’ that yields legal equity for LGBTQ people will pass muster with the theocratic wing of the Supreme Court?”
Was the complaint by Masterpiece Cakeshop that Colorado’s anti-discrimination law had come from a court and not from the legislature?
No – because the law did come from the legislature. From that democratic process.
We’ve seen the contortions that courts can deploy to render statutes – and even their own precedents for that matter – meaningless without formally overturning them.
In Goins v. West Group, the Minnesota Supreme Court pretended it was being even-handed by ruling that the state’s 1993 trans-inclusive Human Rights Act neither mandates nor prohibits restroom genital and chromosome checks – but, in doing so, the court ham-handedly allowed every employer in the state to demand such checks, rendering the Act meaningless for any trans person who might need to pee at some point during regular business hours.
And June Medical Services v. Russo will not be the last word in stopping attempts to kill Roe v. Wade via state regulation that render it functionally meaningless.
What Alito’s dissent in Bostock v. Clayton County earlier this year lacked in the caliber of aggressive pro-theocracy hostility Thomas (presented to America three decades ago by George H.W. Bush – strangely remembered now as one of the reasonable Republicans – as the best qualified candidate then available to fill Thurgood Marshall’s seat) displayed in Davis he made up for via disingenuous smarm.
“Today,” Alito (appointed by the other Bush after being unable to foist someone onto the Court whose only evident accomplishment was attaining the presidency of the State Bar of Texas) wrote in defeat in the Title VII cases, “many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.”
Whether he knows any LGBTQ people or not, I lack the personal knowledge to say (though I suspect that even if he thinks he does, he really doesn’t know them).
The totality of his juridical writings should leave us all with the grave certainty that neither is he among the Americans who want us to be treated with the dignity, consideration, and fairness that everyone deserves nor is he among those who are willing to allow it if they are able to prevent it. Ditto for Clarence Thomas. And Amy Coney Barrett’s presence on the Court – if it is allowed to happen – will only make matters worse for those who do not believe precisely as she does.
As Obergefell v. Hodges goes, so will go Bostock v. Clayton County, and so will go Lawrence v. Texas and so will go Romer v. Evans.