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Thomas and Alito issue a scathing rebuke to the Court’s involvement in gay marriage

Nathan Skates /


Supreme Court Justices Clarence Thomas and Samuel Alito argued that the Court’s prior ruling allowing for same-sex marriage compromises religious liberty. On Monday, Thomas, joined by Alito, issued a statement disparaging the landmark Supreme Court case Obergefell v. Hodges.


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The statement was issued after the Court denied review of a case involving former Kentucky county clerk Kim Davis, who, after Obergefell was handed down, stopped issuing marriage licenses to all couples as to avoid issuing licenses to same-sex couples. Her defiance initially landed her in jail, prompting national attention and advocacy from pastor and former Arkansas Governor Mike Huckabee. Davis has since been sued by various couples.


Though the Court unanimously voted to deny review of Davis’s case because it did not “cleanly” present the problems with the prior ruling, Thomas and Alito maintain that a root issue with these types of cases is fixed in the dangerous precedent set in Obergefell v. Hodges. Their statement, authored by Thomas, said that the Court supported “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. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty,'” citing his 2015 Obergefell dissent.


Regarding Davis’s situation, Thomas wrote that she was forced to decide “between her religious beliefs and her job. When she chose to follow her faith, and without any statutory protection of her religious beliefs, she was sued almost immediately for violating the constitutional rights of same-sex couples.”


He argued further:


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.”


Thomas said that the Obergefell ruling itself allows for this because its language paints those with religious objections to gay marriage as being discriminatory towards the rights of homosexuals.


Another problem that fed the Justices’ argument is that voters had no say in the matter:


“It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law…But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.”


Their statement is concerning to those in support of the ruling as Supreme Court nominee Amy Coney Barrett has also voiced concern over the Obergefell ruling. Former Democratic presidential candidate Pete Buttigieg, who is in a same-sex marriage, tweeted, “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.”


Justices Thomas and Alito did not claim that same-sex marriage should be eliminated, only that the previous case did not allow for voters to have a say nor does it provide due exceptions for religious liberty in the matter. Previous Trump nominees Justices Neil Gorsuch and Brett Kavanaugh did not join in the statement by Alito and Thomas, casting doubt on whether they support reviewing a case that would challenge Obergefell.