Alito and Thomas call for end to Obergefell.
The Supreme Court this week passed on a potential case involving same-sex marriage. Normally, the high court declining to a hear a case wouldn’t be news.
But, tucked away in the back of the court’s dismissal, was something interesting:
“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,” Justice Thomas, writing for himself and Justice Alito, declared. “Until then, Obergefell will continue to have ruinous consequences for religious liberty.”
The Obergefell decision referred to by the two right-wing judges is the Supreme Court’s landmark 2015 decision, Obergefell v. Hodges. In that case, the court ruled 5–4 that the fundamental right to marry is guaranteed to same-sex couples.
The math isn’t good for those that would like same-sex to remain legal in all fifty states. Alito and Thomas are openly calling for the five-year-old precedent to be overturned (so much for stare decisis.) Chief Justice John Roberts, recently imbued with moderate credentials, already ruled against same-sex marriage five years ago. Trump has appointed two conservative judges, Gorsuch and Kavanaugh, and a third judge, Barrett, is set to begin her confirmation hearings on Monday.
That’s two calling for Obergefell to be overturned, one that already voted against it, and (potentially) three Trump-appointed judges on the bench that weren’t there five years ago.
That’s six — and the Republicans only need five.
The flowery language deployed by Alito and Thomas was, of course, misleading. By defending “religion,” “liberty,” and by extension, “religious liberty,” the two justices are just eating alphabet soup of phrases that poll well.
The Obergefell decision wasn’t about religious freedom. Nobody is forcing two religious men or two religious women to marry each other.
Instead, same-sex marriage is a Fourteenth Amendment issue. The majority of justices agreed that the Due Process Clause and the Equal Protection Clause applied to same-sex couples.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family…It would misunderstand these men and women to say they disrespect the idea of marriage…Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Justice Kennedy, representing the majority, wrote.
“They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Judge Barrett is expected to hear plenty of questioning next week on the issues of abortion and healthcare. Let’s hope, as equality-loving Americans, she gets asked to respect Obergefell too.