Supreme Court Justices Samuel Alito and Clarence Thomas have opened the court’s term on Monday by declaring that Obergefell v. Hodges, the Supreme Court case that mandated all states recognize same-sex marriages, is “found nowhere in the text” of the Constitution and threatens “the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman.”
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.”
Alito argued that the question of whether to extend legal marriage rights to same-sex couples should have been solved state by state through legislation.
“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.”
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.’”
LGBTQ+ rights advocates quickly denounced Alito and Thomas’s declaration.
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 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.”
James Esseks, director of the American Civil Liberties Union LGBT & HIV Project, 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.”