People who believe LGBTQ people should have their basic rights respected should be celebrating the Supreme Court’s decision to deny a writ of certiorari in a case that was brought by right wing activist Kim Davis. For those who don’t remember, Davis was the clerk who refused to file same-sex marriages even after the Obergefell v. Hodges case declared a bans on same-sex marriage unconstitutional.
Several of the couples whose marriage certificate she filed ended up suing her and Davis was trying to claim qualified immunity prevented her from facing any consequences for her failure to follow the law. The Court’s decision, however, refuted that reasoning and allowed the cases to proceed.
Unfortunately, conservative justices used the decision to launch an attack on Obergefell v. Hodges and claimed it “bypassed” the “democratic process.” They went on to claim marriage equality would make “it incredibly difficult” for people “with sincerely held religious beliefs concerning marriage” to “participate in society.”
“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,” Justice Clarence Thomas wrote in a four page opinion that was joined by Justice Samuel Alito. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”
It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law,” the Justices added. “But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause.”
This argument that the Court had no place even considering a case involving marriage equality is the same type of logic that Judge Amy Coney Barrett used while opposing the Obergefell decision during a speech she gave at Jacksonville University. Interestingly, neither Barrett nor the current sitting judges have expressed any similar outrage about the Court’s decision in Loving v Virginia.
For those who don’t know Loving v Virginia was a case ruling that bans on interracial marriages violated the Equal Protection and Due Process Clause of the 14th Amendment. In other words, they used essentially the exact same reasoning to defend the constitutional right of interracial couples to get married that Obergefell used while defending the rights of same-sex couple.
Some of the legal professionals who defended bans on interracial marriage claimed that there were biblical reasons for preventing interracial marriage and that the “almighty” was responsible for racial discrimination.
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage,” the trial judge in Loving v Virginia wrote. “The fact that he separated the races shows that he did not intend for the races to mix.”
The Christian foundamentalist college Bob Jones University even banned interracial dating on its campus until 2000 and claimed they should be allowed to do so because God supposedly created people differently. The college only changed its rules after George W. Bush was being tagged with promoting the college’s beliefs when he gave a speech on campus in the lead up to that year’s Republican presidential primary in South Carolina. The unwanted attention provided enough public pressure to finally make a change.
While opposing interracial marriage might be a part of someone’s “sincerely held religious” beliefs, the vast majority of Americans would likely agree that this type of belief is bigoted and religion shouldn’t be used as an excuse to discriminate against someone based solely upon their race. But Thomas and Alitio appeared to be outraged at the mere suggestion that religion shouldn’t be an excuse for discriminating against same-sex couples.
In their opinion in the Davis case, the two right wing justices declared that while Obergefell “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.” In other words, Thomas and Alito thought it was wrong for people to think that those who support discriminate against the LGBTQ community shouldn’t be called bigots.
As Chase Strangio, a staff attorney for the ACLU, pointed out, this also says a lot about the right wing’s approach to constitutional law. While trying to get confirmed to the appeals court in 2017, Judge Amy Coney Barrett frequently told Senators that she respected Supreme Court precedent even if it went up against her personal beliefs, for instance, but Alito and Thomas were eagerly suggesting that Obergefell should be overturned. Considering the case was just decided five years ago, this clearly shows conservative justices have no respect for stare decisis if it prevents them from imposing their religious beliefs on the American people.
“It is a reminder that stare decisis – the principle of applying precedent – will not protect even recently decided cases,” Strangio said. “The brazenness of the rightward direction of the Court is a threat to even the most basic expectation of legal protection.”
“What we can expect is the continued erosion of legal protections gained over the past century. And even if you, like me, are critical of movement priorities like marriage equality or formal systems like non-discrimination law, these threats will impact everything,” he added. “Resources will be redirected to preserve even the most limited status quo while assaults on our bodies and survival opportunities will escalate with no judicial checks.”
While this particular case dealt with marriage equality, the type of reasoning being pushed here could impact a wide range of issues including a woman’s right to make her own healthcare decisions after Roe v Wade.
Fortunately, these comments aren’t going unnoticed. Leaders from the Human Rights Campaign, one of the leading LGBTQ rights organizations, for example, sent out an email to supporters drawing attention to the “alarming statements from two Supreme Court Justices [that] sent a clear message that LGBTQ rights, particularly marriage equality, are still under attack.”
HRC was quick to draw the connection between Alito and Thomas’s anti-equality comments and the current nomination of Amy Coney Barrett.
“The language from Thomas and Alito today proves yet again that a segment of the Court views LGBTQ rights as “ruinous” (a direct quote) and remains dead set against protecting and preserving the rights of LGBTQ people,” the organization’s email read. “Amy Coney Barrett has openly claimed to hold similar views to 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 U.S. and abroad, shows that Barrett will only embolden these anti-equality extremist views on the Court.”
Interestingly, Alito and Thomas highlight how they believe the Court evaded the democratic process here and that the decision should have been left up to the voters. But the opinion was released at the same time Donald Trump is trying to ram through a Supreme Court nominee after voters had already started voting in the 2020 presidential election despite his Republican allies preventing Obama’s nominee from even having a hearing in the Senate when he was nominated almost a year before the 2016 presidential election.
When all this is combined with several of the cases currently working their way through the court system, it’s incredibly clear that supporters of LGBTQ rights have major cause for concern. And the next few weeks could have a large impact on basic equality and how that’s viewed by the Supreme Court for decades to come.