Baltimore Sun

Why Coney Bar­rett’s re­li­gious views mat­ter — a dire warn­ing from Jus­tice Thomas

- By Jef­frey Davis Jef­frey Davis (davisj@umbc.edu) is a pro­fes­sor in the depart­ment of po­lit­i­cal science at the Univer­sity of Mary­land Bal­ti­more County. Twit­ter: @sec1350. Crime · U.S. News · Religion · Society · Discrimination · LGBT Rights · Sexual Abuse · Marriage · Justice · Human Rights · Violence and Abuse · Family · Law · U.S. Supreme Court · Samuel Alito · Kentucky · Amy Coney Barrett · Virginia · Georgia · Ruth Bader Ginsburg · Transphobia · LGBT · Clarence Thomas · Antonin Scalia · Blackstone Legal Fellowship · Southern Poverty Law Center · Fellowship Foundation

On Oct. 5, Supreme Court Jus­tice Clarence Thomas showed how con­ser­va­tive jus­tices could use re­li­gion to take away peo­ple’s fun­da­men­tal rights. With Jus­tice Sa­muel Al­ito in agree­ment, Jus­tice Thomas took the un­usual step of is­su­ing a state­ment about a case even though he agreed with the court’s re­fusal not to take it. And he did so to call for the demise of the court’s mar­riage equal­ity de­ci­sion in Oberge­fell v. Hodges.

The case in­volved Kim Davis, a county clerk in Ken­tucky, who af­ter the Oberge­fell de­ci­sion re­fused to is­sue mar­riage li­censes to same sex cou­ples claim­ing do­ing so vi­o­lated her re­li­gious rights. Jus­tice Thomas ar­gued that the right of same sex cou­ples to marry threat­ens “the re­li­gious lib­erty of the many Amer­i­cans who be­lieve that mar­riage is a sa­cred in­sti­tu­tion be­tween one man and one wo­man.” He com­plained that the mar­riage equal­ity case por­trayed peo­ple with con­trary re­li­gious be­liefs as hav­ing “a big­oted world­view.”

His view couldn’t be more wrong. The Oberge­fell rul­ing does not re­quire any­one to act against their re­li­gious be­liefs. Ms. Davis was not re­quired to marry some­one of the same sex, nor was she or­dered to per­son­ally en­dorse same sex mar­riage. She merely had to fol­low her oath of office and obey state law by is­su­ing the mar­riage li­censes.

Mr. Thomas, Mr. Al­ito, and Supreme Court Jus­tice nom­i­nee Amy Coney Bar­rett twist the right to re­li­gious ex­er­cise into a li­cense to dis­crim­i­nate. Un­der this view, a pro­fes­sor at a state univer­sity who be­lieves God wants women to de­vote them­selves to home life could refuse to teach fe­male stu­dents. Some­one like Ms. Davis could refuse to grant a mar­riage li­cense to an in­ter­ra­cial cou­ple. Af­ter all, be­fore the court in­ter­vened, the trial judge who sen­tenced the Lov­ings for their in­ter­ra­cial mar­riage in Vir­ginia claimed, “Almighty God cre­ated the races ... and he placed them on sep­a­rate con­ti­nents ... the fact that he sep­a­rated the races shows that he did not in­tend for the races to mix.”

Re­li­gion has long been used by some to jus­tify racism, the sub­or­di­na­tion of women and the per­se­cu­tion of gay and les­bian Amer­i­cans, such as in 1873 when the Supreme Court up­held a law for­bid­ding women from be­com­ing lawyers. Ac­cord­ing to “divine or­di­nance ... the para­mount des­tiny and mis­sion of wo­man are to ful­fill the noble and be­nign of­fices of wife and mother,” Jus­tice Joseph Bradley ar­gued.

In the 1986 Supreme Court case that up­held Ge­or­gia’s law al­low­ing prison sen­tences of up to 20 years for same-sex sex­ual re­la­tions, Chief Jus­tice War­ren Burger claimed “Judeo-Chris­tian” teach

ings con­demned same-sex re­la­tions as a “crime against na­ture ... an of­fense of deeper ma­lig­nity than rape.” Tellingly, when the court re­versed this de­ci­sion 17 years later, Jus­tice Thomas and Judge Bar­rett’s men­tor Jus­tice Scalia dis­sented. In his state­ment last week, Jus­tice Thomas com­plained that the court’s rul­ing on same sex mar­riage un­fairly por­trayed those with re­li­gious ob­jec­tions as hav­ing an “an­ti­ho­mo­sex­ual an­i­mus.” If it were up to him, same sex cou­ples could still be locked up as felons.

As a self-pro­claimed orig­i­nal­ist, Judge Bar­rett is likely to agree with her men­tor, Jus­tice An­tonin Scalia, that the Equal Pro­tec­tion Clause does not pro­hibit gen­der dis­crim­i­na­tion di­rectly threat­en­ing Jus­tice Ruth Bader Gins­burg’s heroic legacy. She signed onto a news­pa­per ad in 2006 that called for Roe v. Wade to be over­turned and said the de­ci­sion was bar­baric. And make no mis­take Roe v. Wade pro­tects gen­der equal­ity. As Jus­tice Gins­burg said in her 1993 con­fir­ma­tion hear­ings, when the gov­ern­ment de­cides whether a wo­man must bear a child, that wo­man “is be­ing treated as less than a fully adult hu­man re­spon­si­ble for her own choices.” In a 2007 Supreme Court de­ci­sion, Gins­burg ex­plained that these cases “cen­ter on a wo­man’s au­ton­omy to de­ter­mine her life’s course, and thus to en­joy equal cit­i­zen­ship stature.”

In 2012, Judge Bar­rett signed a let­ter ar­gu­ing that by re­quir­ing cov­er­age for

con­tra­cep­tion the Af­ford­able Care Act com­mit­ted “a grave vi­o­la­tion of re­li­gious free­dom and can­not stand.” Then, in 2015 she signed a pub­lic let­ter en­dors­ing the Catholic Church’s teach­ings on the “mean­ing of hu­man sex­u­al­ity, the sig­nif­i­cance of sex­ual dif­fer­ence ... and on mar­riage and fam­ily founded on the in­dis­sol­u­ble com­mit­ment of a man and a wo­man.” She has been a fac­ulty mem­ber for the Black­stone Le­gal Fel­low­ship run by a group that ac­cord­ing to the South­ern Poverty Law Cen­ter wants to crim­i­nal­ize ho­mo­sex­u­al­ity and en­dorses the ster­il­iza­tion of trans peo­ple. The Fel­low­ship seeks to es­tab­lish a “dis­tinctly Chris­tian world­view in ev­ery area of law.”

Of course, Judge Bar­rett has ev­ery right to hold and cher­ish her re­li­gious be­liefs. It is her will­ing­ness to im­pose out­dated no­tions of equal­ity and lib­erty in her po­lit­i­cal life and ju­rispru­dence that dis­qual­i­fies her for con­fir­ma­tion. Judge Bar­rett’s nom­i­na­tion threat­ens the equal dig­nity of same sex fam­i­lies, the hard won right to gen­der equal­ity, and the right to be left alone in the most in­ti­mate choices we make. These rights must be de­fended. As Jus­tice Gins­burg ex­plained, “A per­son’s right to free ex­er­cise of her re­li­gion must be kept in har­mony with the rights of her fel­low cit­i­zens.”

 ?? ERIN SCHAFF/THE NEW YORK TIMES ?? Judge Amy Coney Bar­rett, with her fam­ily be­hind her, is sworn in to tes­tify be­fore the Se­nate Ju­di­ciary Com­mit­tee on the first day of her Se­nate con­fir­ma­tion hear­ing.
ERIN SCHAFF/THE NEW YORK TIMES Judge Amy Coney Bar­rett, with her fam­ily be­hind her, is sworn in to tes­tify be­fore the Se­nate Ju­di­ciary Com­mit­tee on the first day of her Se­nate con­fir­ma­tion hear­ing.

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