Two conservative Supreme Court justices just launched a chilling attack on the historic equal marriage ruling

Nick Duffy
·4-min read

Watch: Kim Davis - the devout Christian who gained national attention for refusing to issue marriage licenses to same-sex couples

Supreme Court justices Clarence Thomas and Samuel Alito have launched an extraordinary attack on the ruling that led to equal marriage, claiming that people who discriminate against gay couples are “victims” of the law.

On Monday (October 5), the two justices penned a statement as the court declined to consider a case brought by Kim Davis, the Kentucky clerk who refused to carry out her job processing marriage licenses when gay couples were permitted to wed in 2015.

Davis, who has been married four times to three husbands, became a cause celebre among anti-LGBT+ evangelicals when she claimed she was unable to marry same-sex couples because of her Christian values.

Although Thomas and Alito affirmed the court’s decision not to hear the Davis case on procedural grounds, in the statement they launched an extraordinary broadside on the 2015 Obergefell ruling that legalised same-sex marriage across all 50 states.

Supreme Court justices Clarence Thomas and Samuel Alito say Kim Davis was ‘a victim’ of equal marriage

The pair lauded Davis as “a devout Christian” with “sincerely held religious beliefs,” lamenting that “as a result of this court’s alteration of the constitution, Davis found herself faced with a choice between her religious beliefs and her job”.

Thomas and Alito, who were among the dissenters against marriage equality when the court split five to four on the issue in 2015, continued: “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 anti-discrimination laws.

“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.

“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, leaving those with religious objections in the lurch.”

The two Supreme Court justices claimed that Kim Davis was a 'victim' of same-sex marriage
The two Supreme Court justices claimed that Kim Davis was a ‘victim’ of same-sex marriage (Getty)

The pair continued: “This petition 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.

“Until then, Obergefell will continue to have ruinous consequences for religious liberty.”

Civil rights activists fear court’s conservatives will seek to undermine pro-LGBT+ rulings

While the attack is largely symbolic, the intervention will only stoke fears that conservatives on the court, who would be emboldened with a six to three majority if Donald Trump’s latest nominee Amy Coney Barrett is confirmed by the Senate, could drastically undermine LGBT+ equality in a future case.

On November 4, just one day after the US election, the court is set to hear arguments surrounding Catholic Social Services (CSS), a Philadelphia-based adoption and foster care agency that insists it should be allowed to turn away same-sex couples and still receive taxpayer funding.

The case has caused jitters among LGBT+ rights advocates, as even recent victories on LGBT+ discrimination protections came with explicit warnings that civil rights laws could be overridden by religious freedom concerns.

Several other “freedom to discriminate” cases are working through the lower courts, many brought with the support of anti-LGBT+ hate groups who have long set their sights on attempting to carve out a specific protection for discrimination against LGBT+ people under the First Amendment’s protections for religious freedom.

Chase Strangio of the ACLU explained in a Twitter thread that the statement suggests the justices “are eager to overturn Obergefell already — even though it is only five years old.”

He added: “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. ”

Amy Coney Barrett
Seventh US Circuit Court Judge Amy Coney Barrett speaks after US President Donald Trump announced that she will be his nominee to the Supreme Court in the Rose Garden at the White House September 26, 2020 in Washington, DC. (Chip Somodevilla/Getty)

The Alliance for Justice agreed the intervention is “extremely concerning.” The group added: “Marriage equality, or any force it might carry, is 100 per cent threatened by Amy Coney Barrett’s nomination. The court’s conservatives are clearly chomping at the bit to chip away at it.”

LGBT+ civil rights firm Lambda Legal said: “Republicans and the Supreme Court are gleefully coming for marriage equality, and they think that Trump’s SCOTUS nominee Amy Coney Barrett gives them the opportunity to do it.”