As the battle rages on for the vacancy left behind after the death of Supreme Court Justice Ruth Bader Ginsberg, the stakes have just been raised. President Donald J Trump has signaled his intent to push through a rapid nomination and confirmation for Judge Amy Coney Barrett to fill RBG’s former slot. Now that the SCOTUS is looking at a likely 6-3 conservative majority, conservative justices Clarence Thomas and Samuel Alito are feeling brave and speaking out against what they consider to be an infringement on religious rights: marriage equality.
Marriage Equality Has Majority Support in the US
In 1970, marriage equality saw it’s first court battle after a same-sex couple applied for a marriage license in Minnesota and were denied. Shortly thereafter in 1973, the first state, Maryland, banned same-sex marriage. Since then, it has been one fight after another to get US courts to recognize that same-sex couples should have the same rights to marry as heterosexual couples.
On June 26th, 2015, the Supreme Court made same-sex marriage legal in all 50 states, in the landmark case Obergefell vs. Hodges. Oyez sums up the case; “Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of those states’ bans on same-sex marriage or refusal to recognize legal same-sex marriages that occurred in jurisdictions that provided for such marriages. The plaintiffs in each case argued that the states’ statutes violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and one group of plaintiffs also brought claims under the Civil Rights Act. In all the cases, the trial court found in favor of the plaintiffs.”
This overturned bans in 14 states and allowed same-sex couples marry anywhere in the US, although the Sixth Court of Appeals would later challenge this right. The conservative minority on the SCOTUS at the time dissented, saying that the states should be allowed to make this decision themselves and that the ruling was federal overreach of state’s rights and religious rights.
Despite the minority dissent in the landmark case establishing marriage equality, a whopping 67% of Americans are in favor of same-sex couples having the right to marry. Considering the fact that it’s hard to get 67% of Americans to agree on much of anything, that’s a staggering number. However, Justices Thomas and Alito take exception.
Kim Davis Raises the Question Anew
Kim Davis tried to have her case brought before the SCOTUS this week. According to Forbes, Thomas and Alito feel that, “Davis, a Christian clerk who gained notoriety and briefly landed in jail in 2015 for refusing to issue marriage certificates to same-sex couples, was ‘one of the first victims of this Court’s cavalier treatment of religion’ in the Obergefell decision, the justices said, though they agreed with the decision not to hear her case.”
Thomas and Alito Want the SCOTUS to ‘Fix’ Marriage Equality
While Thomas and Alito agreed that the case did not belong before the SCOTUS, Forbes reports, “Thomas and Alito claimed Obergefell v. Hodges, the 2015 decision that officially legalized same-sex marriage, ‘threaten[s] religious liberty,’ saying that because of the decision, ‘those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws.'”
Forbes adds, “The justices argued that the Supreme Court should not have ‘force[d]’ the issue of marriage equality ‘upon society’—saying that if the issue had instead been resolved through state legislation, ‘they could have included accommodations for those who hold these religious beliefs’—and called on the court to ‘fix’ the issues that the decision has presented.”
What Does this Mean for Marriage Equality?
It means trouble could be on the horizon. It’s almost a guarantee that Barrett would support Thomas and Alito in dissolving the Obergefell vs. Hodges ruling and returning the issue to the states to decide. If that happens, the bans in 14 states could be reinstated.
With Trump determined to have Barrett confirmed as soon as possible, those with vested interests in marriage equality and their advocates are gearing up for the fight of their lives. If the conservative majority does push Barrett’s confirmation through despite their historical refusal to confirm a SCOTUS justice in an election year, the Democrats do have an ace in the hole.
If they gain majority control of the Senate, they can end the filibuster that requires a 60-vote majority to pass legislation, a threshold which only Republicans can currently meet on party lines. If they do so, they can add more justices. Despite Senate Majority Leader Mitch McConnell’s insistence that it’s his right to press for the vote, this possibility has to weigh heavily in his mind.