CIVIL RIGHTS
Thomas, Alito Suddenly Go After Marriage Equality
On fi rst day of new SCOTUS term, conservatives warn about threat to religious liberty
BY PAUL SCHINDLER
In a disquieting signal on the
fi rst day of the new Supreme
Court term — with the Republican
Senate hell-bent
on appointing a sixth conservative
justice in Appeals Court Judge
Amy Coney Barrett — Justices
Clarence Thomas and Samuel Alito
took the opportunity of a unanimous
denial of a petition for review
of an appeals court ruling to vent
their continued opposition to the
2015 Obergefell marriage equality
ruling and to argue that until its
fl aws can be “fi xed” it “will continue
to have ‘ruinous consequences
for religious liberty.’”
Thomas’ arguments were suffi -
ciently alarming to prompt Chase
Strangio, an attorney with the
LGBT & AIDS Project at the American
Civil Liberties Union, to take
to Twitter to warn, “First day of the
SCOTUS term and Alito & Thomas
call for the overturning of Obergefell.”
The nearly-1,100 word statement
was not a dissent, and given
that none of the other three conservative
justices currently on the
court — including Chief Justice
John Roberts, who dissented bitterly
from Obergefell fi ve years ago,
and his two post-Obergefell colleagues
Neil Gorsuch and Brett Kavanaugh
— joined the statement, it
is unclear what conclusions can
be drawn from this latest outburst
from Thomas.
The case giving rise to the
Thomas-Alito statement was an
appeal by Kim Davis, the recalcitrant
Kentucky county clerk who
refused to issue marriage licenses
at odds with her offi cial responsibilities,
of a Sixth Circuit Court
of Appeals ruling that affi rmed a
district court decision fi nding that
she did not have “qualifi ed immunity”
as a government offi cial
from liability for damages claimed
by two gay couples to whom she
refused licenses — David Ermold
and David Moore, and James Yates
and Will Smith.
Though Thomas voiced concern
that one member of the Sixth Circuit
Justice Clarence Thomas arrives at the Capitol for the 2013 State of the Union Address alongside
Justice Ruth Bader Ginsburg.
panel inappropriately characterized
Davis’ “sincerely held religious
beliefs” as “anti-homosexual
animus,” he agreed that her appeal
should be rejected, writing that the
question of her “qualifi ed immunity”
claim “does not cleanly present”
the concerns he has about Obergefell’s
religious liberty implications.
Thomas’ statement, in some respects,
merely rehashed the harsh
feelings he and Alito have harbored
for more than fi ve years now since
Obergefell was decided.
Citing arguments made at the
time by Roberts and by himself,
Thomas wrote, “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.”
Though Thomas acknowledged
that Justice Anthony Kennedy, in
his majority opinion in Obergefell,
REUTERS/ WIN MCNAMEE
noted that marriage equality
opponents include “decent and
honorable” people, Thomas saw
elsewhere in that opinion the suggestion
that such opposition inherently
refl ects “a bigoted worldview.”
The reference in the recent
Sixth Circuit decision regarding
Davis’ “qualifi ed immunity” claim
evidencing “anti-homosexual animus”
merely confi rmed that suspicion,
in Thomas’ mind.
In fact, he argued, Obergefell
unfairly put Davis in an untenable
position.
“As a result of this Court’s alteration
of the Constitution,” Thomas
wrote, “Davis found herself faced
with a choice between her religious
beliefs and her job. When
she chose to follow her faith, and
without any statutory protection of
her religious beliefs, she was sued
almost immediately for violating
the constitutional rights of samesex
couples.”
Thomas here, then, is suggesting
that Davis’ religious views
should exempt her from her offi cial
government duties under the law.
That perspective is at the extreme
end of arguments that have been
made about the right of individuals
to claim religious exemptions
from laws generally applicable in
society.
The most famous LGBTQ-related
religious exemption case to
date was the 2018 Masterpiece
Cakeshop decision by the Supreme
Court. There, baker Jack Phillips
claimed a religious exemption from
Colorado’s nondiscrimination law
in refusing to make a wedding
cake for a gay couple. In a 7-2 ruling,
the court found for Phillips,
but not on his claim to a religious
exemption but rather on his argument
that some members of the
state authority that penalized him
had shown hostility to his religious
views. Kennedy’s majority opinion
noted that existing precedent on
the high court does not recognize
a religious exemption from a law of
general application not specifi cally
targeting religious practice.
Numerous cases have proceeded
through the courts regarding similar
confl icts over state nondiscrimination
laws. Now that the high
court, in the June Bostock case,
has recognized that Title VII of
the 1964 Civil Rights Act provides
protection against employment
discrimination based on sexual
orientation and gender identity, religious
exemption claims will also
inevitably arise in terms of federal
law.
To date, however, the Supreme
Court has not directly ruled on the
question of whether religious exemptions
can be asserted in situations
where LGBTQ people are
protected by nondiscrimination
laws or government policies.
That may soon change. The day
after the presidential election, the
Supreme Court will hear arguments
in an appeal of a Third Circuit
Court of Appeals ruling that
rejected claims by the Catholic
Social Services agency in Philadelphia
that lost its foster care
services contract with the city by
refusing to work with same-sex
couples.
The views of Thomas and Alito
on this question are, of course,
obvious. If Barrett is confi rmed
ahead of the election and seated
on the court in time for the argu-
➤ THOMAS & ALITO, continued on p.17
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