The Supreme Court Is Already Trying To Derail Same-Gender Marriage Laws. Will It Work?

On the first Monday in October, two Supreme Court Justices kicked off the new term with a divisive mission to set back marriage equality rights. According to a statement from Clarence Thomas and Samuel Alito, the two conservative judges are making it their mission to try and overturn same-gender marriage in the United States — and they are once again using "religious freedom" as a blatant conservative dog whistle.

On Monday, eight sitting Justices began to tackle a list of cases, one of which was an appeal from former Kentucky county clerk Kim Davis. They denied the appeal for Davis, who in 2015, repeatedly refused to issue marriage certificates to same-gender couples and was subsequently jailed. But, despite the Court’s decision to deny her appeal, Justices Thomas and Alito made clear their disapproval of same-gender marriage in the landmark 2015 Obergefell v. Hodges case.

In a statement made out to their colleagues, the two judges who dissented from the 5-4 marriage ruling in 2015, said that the addition of Obergefell v. Hodges to the Fourteenth Amendment “would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman.” They voiced concern over the “loss” of religious liberty, saying that those who believe only in heterosexual marriage would be “vilified” by “governments, employers, and schools” because of their beliefs.

And somehow, Thomas and Alito managed to turn Davis into a martyr, saying that because of Obergefell v. Hodges, the former county clerk wasn’t able to exercise her rights as someone who had religious objections to same-gender marriage. They even went so far as to call Davis a "victim" of the SCOTUS decision.

“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,” they wrote, not so subtly stating that it was up to the Court to now overturn Obergefell v. Hodges. According to the judges, until that happens, “Obergefell will continue to have ‘ruinous consequences for religious liberty.’” Because equality for all is so scary.

But Obergefell v. Hodges isn't an attack on anyone's "religious freedom": this letter is simply another way to invalidate LGBTQ+ rights and further sow division in the U.S. Worst of all, it's not implausible for these judges to more concretely attack same-gender marriage. Chase Strangio, the ACLU’s Deputy Director for Transgender Justice, explains how the Supreme Court can still actively detail gay rights — especially in 2020. “[The Supreme Court] are the final deciders of the U.S. Constitution,” Strangio tells Refinery29. “From a short-term standpoint, they could validate state laws that allow people to not recognize marriage between [same-gender] couples.”

If the court doesn’t first outright ban same-gender marriage, Strangio explains that a hypothetical ban could look like the Court “chipping away” at laws over time. “It’s a real indication of how aggressively the core shift rightward is working towards discrimination”

An overturn of Obergefell v. Hodges would do just that. “I think this is just another indication about how concerned we should be about the composition of the court,” Strangio said. Backlash against Thomas and Alito's statement was seemingly drowned out by a news cycle invested in the current COVID-19 outbreak on Capitol Hill. But it was still swift, with many stressing the implications of this type of denouncement just as one of the last liberal-leaning judges on the bench passed away.

“Republicans and the Supreme Court are gleefully coming for marriage equality, and they think that Trump's SCOTUS nominee Amy Coney Barrett gives them the opportunity to do it,” Lambda Legal tweeted. Former Indiana mayor Pete Buttigieg called out the lack of “precedent and judicial restraint” on the judges' part, noting that "the stakes could not be higher.”

The stakes are, in fact, higher than ever before when it comes to the rights of marginalized communities. With the nomination of Barrett to replace Ginsburg on the bench, a massive conservative majority could see the overturning of landmark cases like Obergefell v. Hodges and Roe v. Wade

For now, Strangio says that while “we should be concerned with [Thomas and Alito’s] statement and their attempt to undo prior wins,” we should also “keep mobilizing and fighting, so we can survive and thrive.”