SCOTUS Justices Thomas and Alito Urge the Court To Reconsider 2015 Gay Marriage Ruling

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The U.S. Supreme Court has officially decided that it will not hear the case of a former Kentucky county clerk who refused, on religious grounds, to issue marriage licenses to same-sex couples.

As is often the case where Justices Clarence Thomas and Samuel Alito are concerned, however, the court’s final ruling was far from the last word on the subject.

In a four-page Monday opinion on Davis v. Ermold, the conservative jurists fell hard on precedent recently established in the 2015 case of Obergefell v. Hodges, which saw same-sex marriage legalized absent statute with a 5-4 ruling that states must recognize and permit the practice.

“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 wrote, with Alito signing on.

“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.’”

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According to The New York Times, the remarks came in a concurrence, with both justices supporting the court’s decision to pass on the case over unclear presentation of its constitutional merits.

Still, Thomas and Alito managed to leverage the moment for conservative ends, arguing the court had, with its judicial activism in Obergefell, failed to address the legitimate First Amendment concerns presented time and again by religious actors unwilling to budge in their moral opposition to same-sex marriage.

In fact, the justices argued the precedent had outright delegitimized such concerns, allowing any societal opposition to be legally represented as discriminatory and thus stamped out over time.

Thomas on Davis v Ermold by The Western Journal

“Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society,” Thomas wrote. “Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.”

“In other words, Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals,” the justice added.

“Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy.”

Such was the case in 2018, when the court remanded Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, kicking the can down the road on the topic of religious exemptions for figures such as Colorado baker Jack Phillips, who became the target of a high-profile discrimination lawsuit over his unwillingness to create custom wedding cakes for same-sex couples because of his faith.

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Rather than establish clear precedent on the matter, the court ruled 7-2 in favor of seeing the case relitigated before a neutral arbiter at the lower level, as clear “animosity to religion” and “distrust of its practices” had colored the initial decision of the Colorado Civil Rights Commission.

The decision was, of course, a small bandage draped across the gaping First Amendment wound left by Obergefell — a stopgap that could not reasonably suppress the steady bleeding that will undoubtedly continue until the ruling is reconsidered.

As Reason editor Scott Shackford pointed out in a column published Monday afternoon, however, the notable absence of Justices John Roberts, Neil Gorsuch and Brett Kavanaugh on the concurrence indicates a great deal of convincing may, in fact, be necessary if the conservative bloc is to move against Obergefell.

Only serving to further muddy those waters was Gorsuch’s majority opinion this summer in Bostock v. Clayton County, which saw a 6-3 court majority deny American employers the ability to use religious liberty as justification for hiring and firing decisions made with regard to LGBT employees.

According to The Times, the court will hear arguments next month on a religious liberty case involving the exclusion of homosexual couples from the foster care system.

With three of the justices on the court at the time of Obergefell now either dead or retired, and another Republican-appointee now an arm’s reach away from the Supreme Court in U.S. 7th Circuit Court Judge Amy Coney Barrett, many believe Thomas and Alito’s concurrence Monday might foreshadow major changes with regard to precedent on the topic of same-sex marriage.

But Barrett could, like Gorsuch, disappoint conservatives on the topic, her ardent originalist judicial philosophy leaving an abundance of precedent and ancillary accounts on the table for consideration in cases spanning both issues of religious liberty and discrimination.

Regardless, the case seems as good a time as any for Thomas and Alito to push their fellow jurists toward reconstruction — or outright demolition — of the legal foundations set in Obergefell.

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