Supreme Court Justices Clarence Thomas and Samuel A. Alito Jr. appeared to suggest that the court should reconsider the landmark Obergefell v. Hodges decision that made same-sex marriage a constitutional right because it threatens the religious liberty of Americans who believe “marriage is a sacred institution between one man and one woman.”
The justices made the argument in an opinion issued Monday in which the court refused to hear an appeal from former Kentucky county clerk Kim Davis who is being sued for refusing to issue marriage licenses to same-sex couples because of her sincerely held Christian beliefs. Davis, who is a devout Pentecostal Christian, was briefly jailed for her actions.
“This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari,” Thomas wrote in a statement on the case joined by Alito.
Despite denying Davis’ appeal, Thomas argued it “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.”
The Supreme Court ruled 5-4 in the Obergefell v. Hodges case in June 2015 that state-level same-sex marriage bans are unconstitutional, and concluded that the 14th Amendment requires states to issue marriage licenses to same-sex couples.
Chief Justice John G. Roberts Jr., Justice Antonin Scalia, who died in 2016, Thomas and Alito, were the four dissenters.
On Monday, Thomas noted that they had predicted that the decision would threaten religious liberty in 2015 and Americans who support traditional marriage as part of their religious belief are now being unfairly treated as “bigots.”
“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,” Thomas said.
“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,’ id., at 672, the Court went on to suggest that those beliefs espoused a bigoted worldview,” he explained.
“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,” Thomas added.
Thomas further argued that ...