Justices Clarence Thomas and Samuel Alito renewed their criticisms of the Supreme Court's 2015 gay marriage decision on Monday, as the High Court announced that it would not get involved with a lawsuit from two gay couples against Kim Davis, the Kentucky clerk who refused to heed the ruling due to religious scruples.
Davis became a national figure and spent five days in jail after she refused to issue marriage licenses to gay applicants despite the Supreme Court's decision in Obergefell v. Hodges, which legalized same-sex marriage. Thomas, joined by Alito, wrote separately to argue that Davis's case shows how the gay marriage ruling left orthodox religious believers in the lurch, since it established marriage equality nationwide without carveouts for religious objectors. Nonetheless, the pair agreed that the Court should not take up the Davis case.
Their opinion immediately fed leftwing anxieties about the direction of the judiciary, already aggravated by the late Justice Ruth Bader Ginsburg's death. It will likely get play in the upcoming confirmation hearings for Judge Amy Coney Barrett, who is widely perceived to be a social conservative. That the gay marriage decision is actually in any danger is doubtful. In June, two of the conservative justices joined with their liberal colleagues to deliver a landmark LGBT rights decision, and Monday's opinion calls nowhere for the 2015 ruling to be overturned. Still, it fixed attention on what Thomas called Obergefell‘s "ruinous consequences for religious liberty."
"Davis may have been one of the first victims of this Court's cavalier treatment of religion in its Obergefell decision, but she will not be the last. Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws," the opinion reads.
The plaintiff gay couples unsuccessfully sought marriage licenses from Davis's office in 2015, so they sued her under a civil-rights law in federal court. Davis argues that she is protected by a legal rule called qualified immunity, which shields government agents from most lawsuits when they are doing their jobs. The Sixth U.S. Circuit Court of Appeals disagreed, so Davis appealed to the Supreme Court.
"This case is not about whom a person may marry under Kentucky law, whether Kentucky must license the marriage of a same-sex couple, or even whether [the gay couples] could obtain a Kentucky marriage license when they wanted one. Nor is this case about a county clerk who wanted to re-litigate this Court's decision in Obergefell v. Hodges," Davis's petition reads.
Liberals nonetheless saw Monday's opinion as a five-alarm fire.
"Justices Thomas and Alito renewed their war on LGBTQ rights and marriage equality, as the Court hangs in the balance," said Human Rights Campaign president Alphonso David. "Joined by a potential new far-right anti-equality extremist Amy Coney Barrett, the Court could significantly water down what marriage equality means for LGBTQ couples across the nation."
The justices are slated to hear a case involving LGBT couples and a religious adoption agency on Nov. 4, the morning after the presidential election. The dispute arose when the city of Philadelphia stopped referring foster children to Catholic Social Services (CSS), because CSS does not place children with gay couples.
That controversy is big enough on its own, but the Court's decision could have even greater consequences. CSS is also asking the Court to revisit a 1990 decision that holds that laws may not be challenged on religious freedom grounds provided they are neutral and apply to everybody. Four conservative justices indicated they are willing to reconsider that ruling in a 2019 opinion.
The American Civil Liberties Union looked ahead to November's case in a statement condemning Monday's opinion.
"Our government could not function if everyone doing the government's business got to pick their own rules. That's exactly what's at stake in a case that will be argued on Nov. 4—Fulton v. City of Philadelphia," said the ACLU's James Esseks. "We will fight against any attempts to open the door to legalized discrimination against LGBTQ people."
Barrett could join the Court in time to participate in the Fulton case assuming Republicans keep to their confirmation schedule, which was on pace for a final vote in late October. That timeline has been thrown into question after three Republican lawmakers tested positive for COVID-19, while others who tested negative are quarantining due to possible exposure to the virus. Senate Republicans are nonetheless signaling that her confirmation process is on track, though they have no margin for error. Barrett will appear before the Senate Judiciary Committee for several days starting Oct. 12.