Supreme Court Justices Samuel Alito and Clarence Thomas have opened the court’s term by calling for the overturning of its 2015 marriage equality decision.
The Obergefell v. Hodges decision threatens religious liberty, Alito wrote in a statement in which Thomas concurred. The statement accompanied the court’s order deciding not to review an appeals court decision that went against Kim Davis, the Kentucky county clerk who famously closed down marriage license operations rather than serve same-sex couples.
“As a result of this Court’s alteration of the Constitution, Davis found herself faced with a choice between her religious beliefs and her job,” Alito wrote. “When she chose to follow her faith, and without any statutory protection of her religious beliefs, she was sued almost immediately for violating the constitutional rights of same-sex couples.
“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 antidiscrimination laws.”
The question of whether to extend legal marriage rights to same-sex couples should have been solved state by state through legislation, Alito said.
“In Obergefell v. Hodges … the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text. Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. 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. Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often ‘decent and honorable,’ … the Court went on to suggest that those beliefs espoused a bigoted worldview.”
A state-by-state process would result in a patchwork of laws, with some states allowing same-sex marriages and not others, and some possibly not recognizing marriages performed in other states — and perhaps the federal government not recognizing them either, so many benefits available to opposite-sex couples would be denied to same-sex couples.
Thomas wrote in a brief statement that he agreed with the denial of Davis’s appeal, as “this petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them.” He added, “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.’”
The overturning of Obergefell, however, would have ruinous consequences for LGBTQ+ Americans. And if a case on marriage equality comes to the court, its overturning is a real possibility given the court’s conservative majority, likely to become even greater with the death of LGBTQ+ rights champion Ruth Bader Ginsburg and Donald Trump’s nomination of far-right judge Amy Coney Barrett to succeed her. The Republican-majority U.S. Senate plans to proceed with hearings on her confirmation, even though several senators have tested positive for COVID-19. Barrett has criticized the Obergefell decision and has ties to a prominent anti-LGBTQ+ legal nonprofit, the Alliance Defending Freedom.
In the case involving Davis, Davis v. Ermold, two couples who were denied marriage licenses are seeking damages from her. A federal district court and an appeals court have both ruled against Davis’s claim that she was immune from litigation. She famously went to jail for five days for violating a judge’s order to issue marriage licenses without discrimination. She was released after other staff in her office in Rowan County began handling licenses for same-sex couples, and later the state took county clerks’ names off licenses, an accommodation Davis had sought. Davis, who had switched her party affiliation from Democratic to Republican, lost her position to Democrat Elwood Caudill Jr. in the 2018 election.
LGBTQ+ rights advocates quickly denounced Alito and Thomas’s position.
Alphonso David, president of the Human Rights Campaign, issued this statement: “This morning, Justices Thomas and Alito renewed their war on LGBTQ rights and marriage equality, as the court hangs in the balance. The language related to this denial of certiorari [review of a lower court’s ruling] proves yet again that a segment of the Court views LGBTQ rights as ‘ruinous’ and remains dead set against protecting and preserving the rights of LGBTQ peoples. Joined by a potential new far-right anti-equality extremist Amy Coney Barrett, the Court could significantly water down what marriage equality means for LGBTQ couples across the nation. From eliminating hospital visitation rights and medical decision-making in religiously affiliated medical centers to granting businesses a license to discriminate against LGBTQ couples, ‘skim-milk marriage’ would have a devastating effect on our community’s ability to live freely and openly.
“Our love is valid, our love is equal, and our rights must be.
“Amy Coney Barrett has openly claimed to hold similar views to [the late Justice Antonin] Scalia, who Thomas and Alito channel with this opinion. That fact, along with Barrett’s ties to anti-equality extremist groups who aim to criminalize LGBTQ relationships in the United States and abroad, shows that Barrett will only embolden these anti-equality extremist views on the Court.”
The “skim-milk marriage” comment originated with Ginsburg, referring to the denial of certain benefits of marriage to same-sex couples. She made it when the court heard the case in 2013 against the Defense of Marriage Act, which kept the federal government from recognizing same-sex marriages. The court ended up ruling against DOMA.
In a follow-up conference call with reporters, David called the statement from Alito and Thomas "very disturbing," especially given the potential shift of the court's balance to become even more conservative. "Now we have seen a preview of what would come," he said.
“There is no doubt in my mind that Amy Coney Barrett would join Thomas, Alito and others on the Court to chip away at LGBTQ rights, voting rights, reproductive rights, and our right to health care," he added. "This is unconscionable, and we must do all that we can to prevent it from happening.”
Jim Obergefell, the named plaintiff in the case, also spoke on the call. He was able to marry his partner, John Arthur, in Maryland in 2013 shortly before Arthur's death from ALS, but their home state of Ohio did not recognize their marriage and would not list Obergefell as Arthur's spouse on his death certificate, so Obergefell sued. His case and the others consolidated with it won the right for same-sex couples to marry nationwide. "It is unthinkable that Alito and Thomas and others on the Supreme Court want to take away that right," he said.
He noted that overturning or watering down the ruling could lead to public officials refusing to serve interracial couples by citing religious beliefs, or refusing to serve members of other faiths. (No church or clergy member is required to perform any marriage they object to.)
Sarah Warbelow, HRC's legal director, said it is unusual for justices to make comments like the one Alito and Thomas put out Monday. Sometimes, when the Supreme Court declines to review a case, justices will state their disagreement with the decision, she explained, but in this incidence the two justices agreed with the denial but took the opportunity to say they would like to overturn another decision. There are no direct challenges to Obergefell currently in the lower courts, but the statement from the justices was essentially an invitation for such challenges, she said.
A reporter asked Warbelow if it was a good sign that other conservative justices did not join in the statement, but she warned against excessive optimism. Trump appointee Brett Kavanaugh was not on the court when Obergefell was decided, so that's probably why he didn't comment, she said. Trump's other appointee, Neil Gorsuch, was also not on the court at the time, but he wrote the dissent in a 2017 ruling that states have to list both same-sex spouses as parents on a child's birth certificate, showing that he may be willing to chip away at same-sex couples' rights.
Other LGBTQ+ rights activists objecting to the justices' comment included James Esseks, director of the American Civil Liberties Union LGBT & HIV Project, who released this statement: “It is appalling that five years after the historic decision in Obergefell, two justices still consider same-sex couples less worthy of marriage than other couples. When you do a job on behalf of the government — as an employee or a contractor — there is no license to discriminate or turn people away because they do not meet religious criteria. Our government could not function if everyone doing the government's business got to pick their own rules. That's exactly what's at stake in a case that will be argued on Nov. 4 — Fulton v. City of Philadelphia. We will fight against any attempts to open the door to legalized discrimination against LGBTQ people.”
That case involves whether the city had the right to end a contract for foster care with a Catholic agency because the agency would not comply with Philadelphia’s law banning anti-LGBTQ+ discrimination. A trial court and an appeals court have ruled in favor of the city.
"If the court says taxpayer-funded agencies have a right to discriminate based on their religious beliefs, this will make it harder for people to access critical services, such as food banks, homeless shelters, disaster relief services, health care, and more," according to an ACLU analysis. "During a pandemic and an economic crisis, people need to know that they will be able to access these services.
"There is a shortage of foster families nationwide. If agencies providing government foster care services can reject families that do not meet their religious litmus test, children will lose out on countless families. In addition to LGBTQ people, this could impact people of a different faith than the agency or who do not attend church."
Lambda Legal CEO Kevin Jennings also issued a statement on Alito and Thomas's comment: “The nightmare of a hostile Supreme Court majority is already here. The confirmation hearings for Judge Amy Coney Barrett haven’t even started yet and Justices Thomas and Alito are already creating a laundry list of cases they want to overturn. And unsurprisingly, marriage equality is first on the chopping block. Confirming Judge Barrett would be the final puzzle piece they need in order to make it happen.
“Overturning our right to legally marry the person we love and to protect our families would only be the beginning; none of the hard-fought rights that we have won in the courts are safe. That includes the right to marry, to work, or to be recognized as the legal parents of our children.
“But we will not be forced back into the closet. Lambda Legal has taken on tough fights before, beginning in 1973 when we had to sue for our very right to exist under New York law, and we’re ready for this one, too. We have come too far in the 47 years since we were founded to turn back now.”