Two Supreme Court Justices Oppose Marriage Quality

Supreme Court justices Clarence Thomas and Samuel Alito expressed a desire to overturn marriage quality in a four-page opinion released on Monday, 5 October.

The two justices previously expressed dissenting opinions during the Obergefell v. Hodges case, the historic 2015 ruling that guaranteed sex-same marriage under the Fourteenth Amendment to the U.S. Constitution. The opinion release comes at an uncertain time in U.S. political history, with some Americans fearing that the coming of a majority conservative Court could overturn its own previous jurisprudence upholding same-sex marriage as legal under both the Due Process Clause and the Equal Protection Clause.

The opinion release comes in the wake of an appeal from Kim Davis, a former Kentucky clerk who was sued by two same-sex couples after denying them marriage licenses. Davis refused the licenses on religious grounds and argued that she could not be held liable because she receives “qualified immunity” as a government employee. The Sixth Circuit Court of Appeals allowed the lawsuit to progress to the Supreme Court, where Davis was dismissed in an unanimous eight-zero ruling.

Despite voting against Davis, the two justices voiced sympathy for her, dubbing Davis “one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision.”

“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 anti-discrimination laws,” wrote Thomas on behalf of the two justices.

Justice Thomas also suggested that the 2015 ruling stigmatizes those who are opposed to same-sex relationships on religious grounds, writing: “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.”

LGBTQ+ advocacy groups have responded by pointing out the significance of filling the seat of the late Ruth Bader Ginsburg, who died in September. Republicans are hoping to get President Donald Trump’s nominee, conservative judge Amy Coney Barrett, appointed before his presidency ends in November. Barrett currently serves on the Seventh Circuit Court of Appeals. Barrett has previously stated her opposition to same-sex marriage. If Barrett is appointed the Supreme Court will have a three-six liberal-conservative majority.

As the anatomy of the Supreme Court changes, past liberal rulings are especially vulnerable to deconstruction.

The Court is scheduled to hear another case concerning LGBTQ+ rights, Fulton v. City of Philadelphia, on 4 November.  This case will serve as a litmus test for the attitude of the post-Ginsburg court toward LGBTQ+ issues.

Jaclyn Pahl