Justice Clarence Thomas issued an opinion today that repeatedly attacked the 2015 Supreme Court decision in Obergefell v. Hodges – which legalized marriage equality in all 50 states – as unconstitutional because it “bypassed” the “democratic process” and cause people “with sincerely held religious beliefs concerning marriage” to “find it increasingly difficult to participate in society.”
“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,” wrote Thomas, who was joined by Justice Samuel Alito. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”
Thomas made the statements about Obergefell while denying a petition from Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples, citing her Christian beliefs. She has been involved in litigation ever since and asked the Supreme Court this year to overturn an appeals court decision that held her liable for violating people’s rights as an elected official.
The Supreme Court refused to hear the case. Thomas and Alito agreed with the Court because Davis’s case “does not cleanly present” a chance to overturn Obergefell, but they explained exactly why they think the landmark marriage equality decision is unconstitutional.
Thomas called Davis a “devout Christian” who was “one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision.” He wrote that now Christians who oppose LGBTQ equality are being branded “as bigots.”
When bakers refuse to sell cakes to same-sex couples are held liable for discrimination, Thomas argued, the problem is not just anti-discrimination laws but Obergefell itself because it legalized marriage equality.
“Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss,” he wrote.
“Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy.”
While Thomas and Alito don’t currently have a majority of the court to overturn the decision, the ACLU’s Chase Strangio noted on Twitter that it’s unusual to see Supreme Court justices openly show their desire to overturn a five-year-old decision.
“The brazenness of the rightward direction of the Court is a threat to even the most basic expectation of legal protection,” he tweeted.
It is a reminder that stare decisis – the principle of applying precedent – will not protect even recently decided cases. The brazenness of the rightward direction of the Court is a threat to even the most basic expectation of legal protection.
— Chase Strangio (@chasestrangio) October 5, 2020
Vox‘s Ian Millhiser called it “astonishing” that two Supreme Court justices want to take away civil rights from a minority just because some people who oppose them have been called “unkind words.”
“I don’t know how to characterize Thomas and Alito’s views without using the word ‘supremacist,'” he wrote. “Their apparent belief is that their culture must always be dominant and the Constitution must be interpreted not just to ensure that dominance, but to prevent criticism of it.”
Like, I don't know how to characterize Thomas and Alito's views without using the word "supremacist." Their apparent belief is that their culture must always be dominant and the Constitution must be interpreted not just to ensure that dominance, but to prevent criticism of it.
— Ian Millhiser (@imillhiser) October 5, 2020
Amy Siskind of the feminist organization The New Agenda noted that today is the first day without Justice Ruth Bader Ginsburg and that the Court may soon move even further to the right.
That didn’t take long: the Supreme Court’s first day back without RBG and Alito and Thomas are trying to end gay marriage. 29 days. Please vote everyone!!!! https://t.co/IkuSLu8KCN
— Amy Siskind (@Amy_Siskind) October 5, 2020
So much for precedent and judicial restraint. Two justices now openly call for an end to marriage equality—knowing reinforcements are on the way.
The stakes could not be higher. https://t.co/C8vCltkgRD
— Pete Buttigieg (@PeteButtigieg) October 5, 2020