Supreme Court Justices Clarence M. Thomas and Samuel A. Alito last month attacked the high court’s 2015 ruling upholding marriage equality, strongly implying it should be overturned. 

Their comments came when the court announced on Oct. 5 that it will not hear a case brought by Kim Davis, the 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. In a vain attempt to appear impartial, 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 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, Thomas and Alito wrote to state their belief that Obergefell v. Hodges, the 2015 case that legalized marriage equality nationwide, is a threat to religious freedom. 

Thomas and Alito argued that Davis was a victim of religious discrimination, oblivious to the fact that all marriage license applicants  were denied a service they were legally entitled to because Davis, 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.” 

Writing on AU’s “Wall of Separation” blog, Church & State Editor Rob Boston said the future of marriage equality is at risk.  

“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,” Boston wrote. “If Ginsburg is replaced with a justice who doesn’t support LGBTQ rights, Obergefell could evaporate.”  

Boston noted that President Donald Trump’s nominee to replace Ginsburg, Amy Coney Barrett, is hostile to LGBTQ rights. She defended the dissenting justices in the Obergefell ruling during a 2016 lecture at Jacksonville University and has close ties to Christian nationalist legal organizations that have worked to roll back LGBTQ rights, mainly the Alliance Defending Freedom.

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