On Monday morning, Justices Clarence Thomas and Samuel Alito reminded Americans that marriage equality is in imminent peril at the Supreme Court. Thomas, joined by Alito, wrote a screed in defense of Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples, painting her as a modern-day martyr. The two justices suggested that SCOTUS must overturn Obergefell v. Hodges, which recognized same-sex couples’ right to marry, in order to preserve religious liberty in the United States. “Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision,” Thomas warned, “but she will not be the last.”
It’s no secret that Thomas and Alito oppose equal rights for LGBTQ Americans. But their Monday opinion is still profoundly alarming. These two justices did not simply state that marriage equality has no basis in the Constitution. They wrote that marriage equality is an affront to the Constitution, one that trammels the First Amendment rights of Christians. And they did so just weeks before Election Day, as Donald Trump attempts to ram another far-right conservative onto the Supreme Court, creating a 6–3 conservative supermajority. Their message is clear: If Trump installs Amy Coney Barrett, the Supreme Court will take aim at marriage equality.
The Kim Davis saga began in July 2015 when two men walked into the clerk’s office in Rowan County, Kentucky, seeking a marriage license. SCOTUS had granted same-sex couples the right to marry in every state less than two weeks earlier. Davis refused to give the men a marriage license “on God’s authority.” They sued her, and the lower courts found that Davis was, indeed, liable for violating their constitutional rights. Davis asked the Supreme Court to throw out the case, which the justices unanimously declined to do on Monday.
But Thomas and Alito made it clear that they only declined to take Davis’ case because “it does not cleanly” raise religious freedom challenges to “the scope of our decision in Obergefell.” (This is a euphemistic way to say that Davis’ attorneys at Liberty Counsel, a fringe anti-LGBTQ law firm, failed to present a First Amendment claim.) In a separate opinion, the two justices mounted a strenuous defense of Davis while belittling same-sex couples’ constitutional right to wed. Thomas wrote that this right does not actually exist—and that, in recognizing it, the court implied that “those with sincerely held religious objections to same-sex marriage … espoused a bigoted worldview.”
The Supreme Court, Thomas continued, forced same-sex marriage “upon society through its creation of atextual constitutional rights,” which enabled “courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.” In Davis’ case, “Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals.” Thomas 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.”
There’s a lot of unpack in this cri de coeur of aggrieved victimhood. The ominous closing passage indicates that Thomas and Alito are eager to abolish the right to marriage equality altogether to save religious freedom. At a minimum, it demonstrates that both justices want to carve huge loopholes in Obergefell that legalize discrimination against same-sex couples. Thomas and Alito find Obergefell to be so egregiously wrong that they demand heavy-handed intervention on behalf of anti-gay “religious liberty.” They think the court has an obligation to make up new First Amendment rights for anti-gay Americans to balance out the rights enshrined in Obergefell. (SCOTUS will have an opportunity to do that later this term, when the justices will decide whether the First Amendment requires Philadelphia to fund foster care agencies that will not work with same-sex couples.)
While Thomas spilled much ink complaining that Kim Davis was persecuted by the government, he never grappled with the fact that Kim Davis was the government. As a county clerk, Davis had a responsibility to perform her official duties, which included providing marriage licenses. She was not persecuted for private beliefs but for her failure to do her job. Thomas warned of Obergefell’s “ruinous consequences” for religious freedom, fretting that anti-gay Americans will no longer be able “to participate in society.” But his real fear seems to be that Americans—including judges and voters—will criticize opponents of marriage equality who transform their religious views into official discrimination. (Davis lost reelection in 2018.)
There may soon be a conservative majority willing to overturn Obergefell. Justice Neil Gorsuch previously wrote a dissent opposing equal rights for same-sex parents, and joined an earlier Thomas opinion that bashed marriage equality. Chief Justice John Roberts’ outraged dissent in Obergefell raises the very real possibility that he will roll back or reverse that precedent if he gets the opportunity. Justice Brett Kavanaugh hasn’t taken a clear position on the issue, but his recent vote against LGBTQ civil rights signals hostility to same-sex marriage. Barrett, meanwhile, has extremely conservative personal and public views on gay rights. In a 2016 speech, Barrett said Obergefell “was about who gets to decide whether we have same-sex marriage or not.” The dissenting justices weren’t anti-gay, Barrett explained, but rather believed that “it wasn’t for the court to decide” whether they should be allowed to marry. She called Obergefell “a ‘who decides’ question.”
Barrett’s phrasing is almost identical to Kavanaugh’s dissent in June’s LGBTQ civil rights decision, in which he wrote that “this case boils down to one fundamental question: Who decides?” Over the past few years, conservative judges have adopted this phrasing to defend their anti-LGBTQ jurisprudence as principled judicial restraint. Gorsuch, Kavanaugh, Roberts, and Barrett might not adopt the fire-breathing tone that Thomas and Alito prefer. But if Barrett is confirmed and Democrats do not expand the court, there will almost certainly be at least five justices, maybe even six, eager to erode or abolish marriage equality.
They will have a chance to begin soon. Indiana has asked the court to uphold a law that discriminates against same-sex parents by refusing to place both of them on their child’s birth certificate. (Opposite-sex parents are placed on their child’s birth certificate even when they lack a biological connection.) SCOTUS struck down a virtually identical law in 2017, but the court has changed since then, and Indiana wants to try its luck. Republicans, whose party platform still opposes same-sex marriage, smell blood: They’re hungry for the right case to let them destroy Obergefell, either piece by piece or all at once. Marriage equality is already in real jeopardy. If Barrett joins the court, it could soon be dead in the water.