Remember Kim Davis, the Kentucky county clerk who refused to approve of marriage licenses for gay couples after the Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples by the Fourteenth Amendment? Kim Davis brought some sort of lawsuit arguing that her free exercise rights were violated, and that case eventually wound its way up to the Supreme Court, which rejected it this morning.
That’s the good news. The Supreme Court refused to hear the case. The bad news is this: Justice Thomas, joined by Justice Alito, wrote a ranting dissent taking aim at Obergefell, the case that granted gay couples the right to marry under the Constitution.
The Supreme Court turned away Kim Davis' case, but Thomas (joined by Alito) wrote a jaw-dropping rant taking direct aim at Obergefell and suggesting that SCOTUS must overturn the right to marriage equality in order to protect free exercise. https://t.co/qES8IZkw0U pic.twitter.com/F0zrYdBaeH— Mark Joseph Stern (@mjs_DC) October 5, 2020
If you don’t want to read all of that, the gist is this: Obergefell violates the free exercise clause and the decision essentially gave folks a state-sponsored reason to call Kim Davis (and others like her) “bigots,” which they are.
Now, if you’re like me, your immediate thought might be, “Oh, Thomas and Alito? Big deal. A couple of right-wing outliers.” That might have been true four years ago, but it’s not the case anymore. Need I remind you that Obergefell was a 5-4 decision and that two of those five justices are no longer on the court. In fact, Chief Justice Roberts was a dissent in Obergefell, and he’s now considered to the left of the court. Scalia dissented in Obergefell, and Neil Gorsuch, Brett Kavanaugh, and especially Amy Coney Barrett all consider Scalia to be their role model (we also know that Barrett received money from an anti-LGBTQ+ hate group).
That’s bad. There are potentially six justices who want to overturn Obergefell, which is only a five-year-old case that some on the court may have little problem reversing. I like to believe that at least Roberts — despite his dissent — will respect Obergefell because he’s a believer in stare decisis, but needless to say, this is more than a little concerning. If the decision is overturned, either the states will all have to legalize same-sex marriage individually, or we’ll go back to being a country where the fundamental right to marriage is not a possibility for gay couples in certain states. And if the Supreme Court reverses Obergefell, Lawrence — which ruled that laws prohibiting sexual activities between consenting adults are unconstitutional — may be next.