Supreme Court Justices Clarence Thomas and Samuel A. Alito Jr. appeared to suggest that the court should reconsider the landmark Obergefell v. Hodges decision that made same-sex marriage a constitutional right because it threatens the religious liberty of Americans who believe “marriage is a sacred institution between one man and one woman.”
The justices made the argument in an opinion issued Monday in which the court refused to hear an appeal from former Kentucky county clerk Kim Davis who is being sued for refusing to issue marriage licenses to same-sex couples because of her sincerely held Christian beliefs. Davis, who is a devout Pentecostal Christian, was briefly jailed for her actions.
“This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari,” Thomas wrote in a statement on the case joined by Alito.
Despite denying Davis’ appeal, Thomas argued it “provides a stark reminder of the consequences of Obergefell. 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.”
The Supreme Court ruled 5-4 in the Obergefell v. Hodges case in June 2015 that state-level same-sex marriage bans are unconstitutional, and concluded that the 14th Amendment requires states to issue marriage licenses to same-sex couples.
Chief Justice John G. Roberts Jr., Justice Antonin Scalia, who died in 2016, Thomas and Alito, were the four dissenters.
On Monday, Thomas noted that they had predicted that the decision would threaten religious liberty in 2015 and Americans who support traditional marriage as part of their religious belief are now being unfairly treated as “bigots.”
“In Obergefell v. Hodges,…, the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text. Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. 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 said.
“The Court, however, bypassed that democratic process. Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often ‘decent and honorable,’ id., at 672, the Court went on to suggest that those beliefs espoused a bigoted worldview,” he explained.
“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. 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,” Thomas added.
Thomas further argued that the Obergefell decision left “those with religious objections in the lurch” and “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.”
During his campaign in 2016, then-candidate Donald Trump promised that if he was elected, he would consider, appointing Supreme Court judges willing to overturn the Supreme Court's decision that legalized same-sex marriage nationwide, arguing the move would unite the country.
"It has been ruled upon, it has been there, if I'm elected I would be very strong on putting certain judges on the bench that I think maybe could change things. They've got a long way to go. At some point we have to get back down to business but there is no question about it and most people feel this way," Trump told "Fox News Sunday" host Chris Wallace at the time.
He explained that he wasn't happy with the way the Obergefell v. Hodges decision was made and believes the issue of same-sex marriage should have been addressed at the state level and not by the federal government.
"I disagree with the Supreme Court from the standpoint, they should have given the states, it should be a state's rights issue. And that's the way it should have been ruled on Chris. Not the way they did it. This was a very surprising ruling and I can see changes coming down the line quite frankly. I would have much preferred that they ruled at a state level and allowed the states to make those rulings themselves," Trump said.
Five years ago, Trump’s most recent Supreme Court nominee, Judge Amy Coney Barrett, who is awaiting confirmation by the Senate, and is a member of the closely-knit charismatic and ecumenical Christian group called People of Praise in South Bend, Indiana, signed a public letter expressing agreement with the Catholic Church’s teachings on sexuality and the family.
“We give witness that the Church’s teachings—on the dignity of the human person and the value of human life from conception to natural death; on the meaning of human sexuality, the significance of sexual difference and the complementarity of men and women; on openness to life and the gift of motherhood; and on marriage and family founded on the indissoluble commitment of a man and a woman—provide a sure guide to the Christian life, promote women’s flourishing, and serve to protect the poor and most vulnerable among us,” the letter said.