By: Mylo Fisherman & Ezra Lahey
On June 26, 2015, the Supreme Court case of Obergefell v. Hodges was decided in a majority 5-4 decision for Obergefell declaring that the Equal Protection Clause of the Fourteenth Amendment extends to marriage rights for same-sex couples.
Samuel Alito and Clarence Thomas, two of the original justices who dissented from this ruling, urged the court at the beginning of October to reconsider their decision. This coupled with Ruth Bader Ginsburg’s recent passing, and Amy Coney Barrett’s subsequent nomination to the Supreme Court poses a significant threat to the rights of LGBTQ+ individuals across the country.
Justice Thomas wrote, in an opinion joined by Justice Alito, “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.”
Shortly after, the justices issued a four-page statement criticizing the harm that Obergefell v. Hodges has done to religious freedom, published in response to a case concerning Kim Davis, a Kentucky county clerk who had been sued for refusing to issue marriage licenses to same-sex couples.
In this, Justice Thomas states, “Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society,” and “Obergefell 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… In other words, Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals.”
These statements come at a time where conservative justices will soon have the majority of the Supreme Court. First, Justices Thomas and Alito are evidently against marriage equality. Justice John Roberts also dissented from the Obergefell v. Hodges decision. Justice Neil Gorsuch and Justice Brett Kavanaugh were both appointed by President Donald Trump and are conservative-leaning. Amy Coney Barrett, Trump’s pick to replace Bader Ginsburg, refuses to offer her position on this topic, though she has previously shown that she is conservative-leaning. Finally, three members of the consenting majority remain on the Supreme Court. If the appointment of Amy Coney Barret is approved, the Supreme Court will have a 6-3 conservative majority.
While marriage equality is at risk because of the majority conservative Supreme Court, the means by which it is being scrutinized is also unjustifiable judicially. Justice Thomas and Alito’s main argument is that marriage equality impedes on the Freedom of Religion aspect of the First Amendment, specifically the Free Exercise Clause.
Alternatively, if the court case were to be overturned, it would be unjustified because it would be breaking the Establishment Clause of the First Amendment. Under the Establishment Clause, the church is separated from the state meaning that the government is barred from favoring one religious view over the other.
Additionally, marriage equality isn’t forcing anyone to go against their religious beliefs. The ruling simply ensures that same-sex couples who wish to marry and reap the accompanying societal benefits can do so.
It is sad to think that we are approaching 2021 and the country is divided, still fighting tooth and nail for civil rights. It seems to be that gaining civil liberties has become a one-step-forward-three-steps-back ordeal and progress is always lost in the long run.