Two justices criticize court’s 2015 decision in gay marriage

WASHINGTON — The Supreme Court, already poised to take a significant turn to the right, opened its new term Monday with a jolt from two conservative justices who raised new criticism of the court’s embrace of same-sex marriage.

The justices returned from their summer break on a somber note, following the death of Justice Ruth Bader Ginsburg, hearing arguments by phone because of the coronavirus pandemic and bracing for the possibility of post-election court challenges.

The court paused briefly to remember Ginsburg, the court’s second woman. But a statement from Justice Clarence Thomas, joined by Justice Samuel Alito, underscored conservatives’ excitement and liberals’ fears about the direction the court could take if the Senate confirms President Donald Trump’s nominee for Ginsburg’s seat, Amy Coney Barrett.

Commenting on an appeal from a former county clerk in Kentucky who objected to issuing samesex marriage licenses, Thomas wrote that the 5-4 majority in a 2015 case had “read a right to samesex marriage” into the Constitution, “even though that right is found nowhere in the text.” And he said that the decision “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.”

Thomas suggested the court needs to revisit the issue because it has “created a problem that only it can fix.” Until then, he said, the case will continue to have “ruinous consequences for religious liberty.”

The court turned away the appeal of the former clerk, Kim Davis, among hundreds of rejected cases Monday.

Thomas’ four-page statement prompted outrage from LGBTQ rights groups and others. Alphonso David, president of the Human Rights Campaign, said in a statement that Thomas and Alito had “renewed their war on LGBTQ rights and marriage equality” as the direction of the court “hangs in the balance.”

With Ginsburg’s death and the retirement of Justice Anthony Kennedy in 2018, only three members of the majority in the gay marriage case remain: Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Barrett’s confirmation would cement a 6-3 conservative majority on the court, and she has compared her approach to the law generally to that of her mentor, Justice Antonin Scalia, one of the decision’s dissenters.

Reversing the court’s decision in the gay marriage case would seem a tall order, but Thomas’ statement underscored liberals’ fears that the court could roll back some of their hardestgains.

Said Roberts: “We at the court will remember her as a dear friend and a treasured colleague.”