Marriage equality has been the law of the land for five years now, but if two Supreme Court justices have their way, it won’t be for long.
Yesterday, the high court announced that it will not hear a case brought by Kim Davis, the infamous former Rowan County, Ky., clerk who refused to issue marriage licenses to same-sex couples even after they had secured the legal right to wed. Davis further ordered that no clerk in her office issue any marriage licenses at all, denying both same-sex and opposite-sex couples.
The matter went to court, where Davis lost. She argued that a civil lawsuit against her should be dismissed because it was allegedly not clear that her conduct was illegal at the time when it occurred. The Supreme Court’s decision not to hear Davis’ case means that the lawsuit against her may proceed.
In the process of disposing of this case, two justices – Clarence M. Thomas and Samuel A. Alito – wrote to state their belief that Obergefell v. Hodges, the 2015 case that legalized marriage equality nationwide, is a threat to religious freedom.
Remarkably, Thomas and Alito seem to believe that Davis was the victim here. They couldn’t be more wrong about that. The victims were the men and women who were denied a service they were legally entitled to have because a taxpayer-funded government employee refused to do her job.
“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,” Thomas and Alito wrote. “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 two concluded, “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.”
And what might that “fix” be? While Thomas and Alito didn’t explicitly call for Obergefell to be overturned outright, it’s clear that’s what they’re after.
Remember, the Obergefell decision was a 5-4 ruling, and two of the justices in the majority (Anthony Kennedy and Ruth Bader Ginsburg) are no longer on the court. If Ginsburg is replaced with a justice who doesn’t support LGBTQ rights, Obergefell could evaporate.
President Donald Trump’s nominee to replace Ginsburg, Amy Coney Barrett, is hostile to the rights of the LGBTQ community. As Americans United noted in its recent report on Barrett, she defended the dissenting justices in the Obergefell ruling during a 2016 lecture at Jacksonville University. Barrett also has close ties to legal organizations that have worked to roll back LGBTQ rights, mainly the Alliance Defending Freedom.
We’re less than one month away from the presidential election. The Senate has no business shoehorning a nominee onto the court this close to an election, but Barrett is the wrong choice for the Supreme Court no matter what happens next month. The American people deserve a justice who will expand our rights, not join Thomas and Alito in tearing them down. Tell your Senators to oppose Barrett’s confirmation.