Supreme court rejects appeal from clerk who refused to register gay marriage
LGBTQ campaigners and legal experts have told of their fears and outrage on Monday after two US supreme court justices issued an “appalling” attack on the 2015 landmark decision enabling same-sex couples to marry.
It came as the court declined to hear an appeal in the case of former Kentucky clerk Kim Davis, who was jailed in 2015 after refusing to issue marriage licenses to same-sex couples, after gay marriage became legal.
Although supreme court justices Clarence Thomas and Samuel Alito said they agreed with the decision not to hear the case, they said it was a “stark reminder of the consequences” of the court’s 2015 Obergefell v Hodges decision. Davis, they claimed, “may have been one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision” and warned: “She will not be the last.”
In a scathing attack they said the court had “bypassed the democratic process” and left those with religious objections to same-sex marriage “in the lurch”.
“By choosing to privilege 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.’”
Thomas and Alito, who are two of five conservatives on the nine-member court, also said it “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.
James Esseks, director of the American Civil Liberties Union (ACLU) LGBT and HIV Project denounced their comments.
“It is appalling that five years after the historic decision in Obergefell, two justices still consider same-sex couples less worthy of marriage than other couples,” he said.“When you do a job on behalf of the government – as an employee or a contractor – there is no license to discriminate or turn people away because they do not meet religious criteria.”He added: “We will fight against any attempts to open the door to legalized discrimination against LGBTQ people.”
In practice, Esseks told the Guardian that today’s order doesn’t do more than provide “a preview of what some justices’ views are” and he does not believe it will lead to the overturning of Obergefell because “the freedom to marry has become part of American culture”.But he does fear that same-sex marriages could be treated differently.
“What I’m worried they’re going to say is ‘ Well, fine, we’ll give you the marriage licence and you can call yourself married, but we’re not going to treat your marriage the same way we treat other people’s marriages’. The concern is that they’re going to use religious liberty as an excuse for licencing discrimination .” Preston Mitchum, policy director at Urge: Unite for Reproductive and Gender Equity, said the potential impact of targeting Obergefell goes far beyond same-sex marriage. “It will impact every single thing. Resources of courts will be redirected to maintain status quo. We know the more right[wing] the court gets, the less likely they are to rule in favour of marginalised communities … It’s more than marriage because it connects so many pieces of our lives.”
Following the death in September of the liberal justice Ruth Bader Ginsburg, the Trump administration and Republicans, who control the US Senate, are attempting to confirm a sixth conservative, the Indiana federal judge Amy Coney Barrett, before the presidential election on 3 November.LGBTQ rights organisations said the Obergefell decision, which was a narrow victory, is vulnerable following Ginsburg’s death and that today’s comments act as a warning sign for what is to come.“The nightmare of a hostile supreme court majority is already here. The confirmation hearings for Judge Amy Coney Barrett haven’t even started yet and Justices Thomas and Alito are already creating a laundry list of cases they want to overturn,” said Kevin Jennings, chief executive of the civil rights organisation Lambda Legal.
Chase Strangio, an attorney and trans rights activist, said on Twitter: “I think we can expect states to pass laws that will be direct challenges to Obergefell in 2021 sessions. Which is another reason to pay attention to downballot [election] races. State lawmakers have a huge impact on our lives.”Former Democratic presidential candidate Pete Buttigieg, who was the first openly-gay presidential candidate, and is married to husband Chasten Buttigieg, also responded to the justices, tweeting: “So much for precedent and judicial restraint. Two justices now openly call for an end to marriage equality – knowing reinforcements are on the way. The stakes could not be higher.”