The new Supreme Court term — the first without Justice Ruth Bader-Ginsburg — began on Monday, October 5. And one of the first things they did was refuse to hear an appeal from the infamously homophobic former Kentucky county clerk Kim Davis. You may remember Davis from that time that she refused to separate church and state in the course of performing her then-duties as a county clerk required, and then turned her selfish self-righteousness into a national headline grabbing crusade.
So yeah, it’s good that they wouldn’t waste their time hearing her roll out the same nonsensical arguments for justifying bigotry.
However, conservative Justices Clarence Thomas and Samuel Alito opted to use this opportunity make clear their distaste with the 2015 Obergefell v Hodges decision that led to the federal recognition of same-sex marriage — the law that Davis refused to uphold in her duties as a government employee.
The two justices agreed with the decision not to hear the case but used the occasion to take a legal baseball bat to the court’s 2015 decision Obergefell v. Hodges, which declared that same-sex couples have a constitutional right to marry under the 14th Amendment guarantee to equal protection of the law.
Writing for himself and Alito, Thomas said that the court’s decision “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.”
[T]he case “provides a stark reminder” of the consequences of the same-sex marriage decision. By choosing to endorse “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,” they said. “Until then, Obergefell will continue to have ruinous consequences for religious liberty.”
Realistically — if we are to believe that these arguments were made in good faith, and not as culture war signifiers; which also assumes that the Justices who made these arguments believe in and respect the legal system established by this country, which recognizes precedent — an attempt to overturn Obergefell would be an utter bureaucratic disaster. Just imagine the process involved in the IRS trying to sort through and undo 5+ years of tax records for joint filing that is no longer considered legitimate. From there, it spirals outwards to parental rights, hospital visitation rights, healthcare, and so much more. While Trump’s GOP might gleefully try to undo that progress just for the sake of cruelty, the administrative efforts required to enact their legalized discrimination would be a nightmare. There is a world in which someone could have successfully argued that the US government should have no involvement in marriage at all, and that no one should receive any legal benefits in recognition of a religious union. But that doesn’t seem to be in the interest of Thomas and Alito, nor indeed the religious Right nor potential-future-Justice Amy Coney Barrett.
On the issue of religious liberty, this overturning could potentially open another dangerous can of worms about who gets to decide what qualifies as a religion, and how, and why. There are plenty of Episcopalian and United Methodist ministers who believe in marriage equality, and could marry a same-sex couple in a religious ceremony; would that not be allowed, if the federal government doesn’t recognize their union? I’m ordained in the United Church of Cthulhu, and once officiated a wedding as a representative of the Church of Latter-Day Dudes. Can the government decide that that is no longer legitimate? (Okay granted, the couple whose marriage I officiated as The Dude has themselves decided that their marriage is no longer legitimate and have since divorced, but still, my point stands.)
Either way: the fact that Thomas and Alito took this moment — at the start of a new term, facing the potential future of a conservative majority — to make this point is incredibly infuriating. It’s hard to see it as anything but trollish virtue signalling to the ongoing conservative culture war.
One would hope that a Supreme Court Justice — even a famously conservative one! — would be above such pettiness. That their track records would have established a respect for the Justice system and the rule of law that went beyond the typical conservative lip-service paid to such concepts in the interests of authoritarian power-grabbing. NYT columnist Ross Douthat at least made a cogent argument a few weeks ago saying that the Supreme Court’s continued in culture war issues — starting with abortion, through civil rights, into marriage equality — has continuously de-legitimized the purpose of the court from a Constitutional perspective. While I don’t agree with Douthat on this (especially the part where the defense of bodily autonomy in Roe v Wade was somehow not an issue for courts to get involved with), I can least understand his perspective. But what Thomas and Alito have done here is a deliberate contribution to that delegitimization that is allegedly felt by so many other conservatives. And that’s the most shameful and disgusting part about it.
It’s also worth noting that Obergefell was argued using the precedent established by a previous 14th Amendment Supreme Court Case — Loving v. Virginia, which protected interracial marriages, like the one that Justice Thomas is in.
Justices Thomas, Alito Blast Supreme Court Decision On Same-Sex Marriage Rights [Nina Totenberg / NPR]
Image: Flickr / Fibonacci Blue (CC 2.0)