THE NEUTRAL ZONE
The U.S. Supreme Court rejected an appeal from Kim Davis Monday, but also referred to the 2015 Obergefell v. Hodges ruling as a “cavalier treatment of religion.” The former Kentucky county clerk cited her religious beliefs in refusing to issue marriage licenses to same-sex couples in 2015. She was briefly jailed for contempt, and Kentucky later changed state law so marriage licenses were no longer issued in the name of the county clerk.
Justices Clarence Thomas, Samuel Alito, Antonin Scalia and John Roberts dissented in 2015. Justice Roberts called the majority’s approach “deeply disheartening” and criticized what he saw as activism. Justice Thomas said the court had “short-circuit[ed]” the political process by overruling states and said the decision could have “potentially ruinous consequences for religious liberty.” Justice Alito said the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”
Justice Thomas, joined by Justice Alito, wrote on Monday that the 2015 ruling “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.” They described Davis as “one of the first victims” of the ruling, adding “she will not be the last.”
Numerous Democratic lawmakers expressed concern regarding Justice Thomas and Justice Alito’s statements. Rep. Adam Schiff called them “chilling” and added that “Trump’s effort to stack the court couldn’t be more insidious and the stakes couldn’t be higher.” California Gov. Gavin Newsom said, “The @GOP are coming for marriage equality–and Amy Coney Barrett gives them that opportunity. VOTE.” Rep. Jamie Raskin said, “Religious freedom isn’t the right to compel govt to violate other people’s equal rights.”
Two Supreme Court Justices Just Put Marriage Equality on the Chopping Block – Slate Magazine – 10/5/2020
It’s no secret that Thomas and Alito oppose equal rights for LGBTQ Americans. But their Monday opinion is still profoundly alarming. These two justices did not simply state that marriage equality has no basis in the Constitution. They wrote that marriage equality is an affront to the Constitution, one that trammels the First Amendment rights of Christians. And they did so just weeks before Election Day, as Donald Trump attempts to ram another far-right conservative onto the Supreme Court, creating a 6–3 conservative supermajority. Their message is clear: If Trump installs Amy Coney Barrett, the Supreme Court will take aim at marriage equality.
SCOTUS Startles Liberals As It Rebuffs Clerk Who Withheld Marriage Licenses From Gay Couples – Washington Free Beacon – 10/5/2020
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.
The Religious Hijacking of the Supreme Court Doesn’t Require Amy Barrett – The New Republic – 10/6/2020
An originalist in the mold of her mentor Justice Antonin Scalia, Barrett could hamper liberal causes for decades to come. But it’s perhaps underappreciated just how much the conservative religious takeover of the court has long been underway. If Barrett is confirmed, she will join a bench that has already tipped the balance of church and state toward the former. Even if she isn’t confirmed, make no mistake—this trajectory is already laid in.
Alito and Thomas on Obergefell – National Review – 10/5/2020
There are, however, two ways the Court could “fix” the problem other than overturning Obergefell. It could find a way to walk away from the problematic dicta that the justices identify in Justice Kennedy’s decision in that case, or it could expand its protection for the free exercise of religion. Of these three options — reverse Obergefell, repudiate some of its reasoning, or expand free exercise — the one that seems most likely is the last. Employment Division v. Smith seems more and more vulnerable to a reversal.