Clarence Thomas Says Supreme Court Needs to 'Fix' Obergefell After the Jailing of Kim Davis

AP Photo/Pablo Martinez Monsivais, File

On Monday, the Supreme Court declined to take up the case Kim Davis v. David Ermold, which revolved around former Rowan County, Ky., clerk Kim Davis, who notoriously refused to grant same-sex marriage licenses to a homosexual couple, citing her belief that marriage is between one man and one woman. While Justices Samuel Alito and Clarence Thomas agreed not to take up the case, they argued that the Supreme Court needs to “fix” a central error in Obergefell v. Hodges (2015), the case that legalized same-sex marriage, because the Court’s ruling supports anti-religious bigotry.

Ermold, one of the homosexual men who applied for a marriage license, sued Davis after she refused to issue one. Davis argued that she was protected from lawsuits under qualified immunity, but a judge found her in contempt of court and jailed her for five days. Ermold won the lawsuit, and Davis appealed it. The Supreme Court refused to reopen the case.

Alito and Thomas concurred with the judgment not to hear the case, but Thomas wrote (and Alito joined) a powerful condemnation of the way Obergefell mainstreams hostility toward conservative Christians and others who hold that marriage is between one man and one woman.

“Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last,” Thomas warned. “Due to Obergefell, 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.”

Thomas argued that if Congress had passed a same-sex marriage law — rather than the Supreme Court declaring same-sex marriage legal by judicial fiat — the law may have included vital protections for religious freedom. Even if it had not included such protections, the First Amendment may have required them. Yet the way the Supreme Court created a right to same-sex marriage uniquely threatens traditional religious believers.

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“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,” Thomas wrote.

The Supreme Court justice warned that “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. For example, relying on Obergefell, one member of the Sixth Circuit panel in this case [Davis v. Ermold] described Davis’ sincerely held religious beliefs as ‘anti-homosexual animus.'”

“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 explained. “This assessment flows directly from Obergefell’s language, which characterized such views as ‘disparag[ing]’ homosexuals and ‘diminish[ing] their personhood’ through ‘[d]ignitary wounds.'”

“Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy,” the justice noted.

Thomas ultimately concluded that Kim Davis’ petition “implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari.”

Even so, he noted that the Kim Davis case “provides a stark reminder of the consequences of Obergefell. 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. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty,'” Thomas concluded, quoting his own dissent in Obergefell.

An uncharitable reaction

Democrats seized on the end of Thomas’ concurrence, acting as though the justice had called for the overturning of Obergefell and an end to “marriage equality.”

“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,” Pete Buttigieg, former 2020 presidential candidate and former mayor of South Bend, Ind., tweeted.

“Just a reminder that overturning [Obergefell] (gay marriage) is in the Republican Party’s official platform. Alito and Thomas just signaled their wishes to overturn it and we already know where Barrett stands on the issue. Please vote,” Chasten Buttigieg, legally Mayor Pete’s husband, tweeted.

Biden Staffer: Traditional Religious Beliefs Should Be ‘Taboo’ and ‘Disqualifiers’ for Public Office

Attorney General Dana Nessel (D-Mich.) responded to Thomas’ concurrence by suggesting he has a double standard on the issue. Nessel noted that Thomas, who is black, is married to a white woman, and his “marriage was illegal in several states until SCOTUS decided otherwise” in Loving v. Virginia (1967). “My marriage only became legal in 2015 when Obergefell was issued,” Nessell, who is married to another woman, added. “It especially sucks that my 5th anniversary may now be my last since the 6th is the candy anniversary.”

Star Trek actor George Takei, who is married to another man, claimed that his marriage “hangs by a thread.”

“With Thomas and Alito terrifyingly writing today that they would overturn Obergefell (the same-sex marriage case), and Roberts already on record against it, my own marriage hangs by a thread. Barrett would makes 4. Kavanaugh? Gorsuch? I’m shaking in rage and dread,” Takei tweeted.

Adrienne Lawrence, a lawyer and Young Turks host, noted something that the Buttigiegs, Nessel, and Takei seemed unable to grasp. She warned that Thomas’s concurrence shows that “[a]t least two justices want to overturn or craft exemptions to same-sex marriage” (emphasis added). Lawrence made it clear she fears the Supreme Court would “elevate religion over same-sex marriage.”

Thomas was not saying the Supreme Court needs to strike down Obergefell and make same-sex marriage illegal across the United States. Even if the Supreme Court were to strike down the decision — which I would support because Obergefell is a horrendous act of judicial overreach — that would only allow states to make their own laws on same-sex marriage, and most states would allow some form of legal union.

Thomas did not address whether or not same-sex marriage should be legal — he was clearly acting in the current framework where it is already legal. Instead, he addressed the need for religious liberty protections. As it stands, Obergefell is a threat to religious freedom and a cudgel with which some demonize conservative Christians and those who hold to a traditional definition of marriage.

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Demonizing traditional beliefs

Democratic nominee Joe Biden is a practicing Roman Catholic, but even he — this ostensible moderate — called conservative Christians who oppose LGBT activism “the dregs of society.” A Biden staffer has said she wants traditional religious beliefs about marriage and sexuality to become so “taboo” that they are “disqualifying” for the Supreme Court.

In the book So Many Christians, So Few Lions: Is There Christianophobia in the United States? sociology professors George Yancey and David Williamson painstakingly document the presence of bias against conservative Christians, proving that it is as real as animus against Muslims and Jews.

Justice Thomas warned that some use Obergefell to justify the idea that just “being a public official with traditional Christian values” is “legally tantamount to invidious discrimination toward homosexuals.” Indeed, it seems some states have adopted just such an approach. Virginia has effectively forced Christian ministries to adopt “government ideology” or pay excessive fines for “discrimination.”

Americans should be able to disagree with same-sex marriage and transgender identity without facing censure from the government. Sadly, Obergefell made it extremely difficult to balance same-sex marriage with religious freedom. Ideally, Congress should propose a solution, but failing that, the Supreme Court should vindicate free speech and religious freedom.

When Thomas wrote that Obergefell needs to be “fixed,” he didn’t mean that same-sex marriage should be outlawed by judicial fiat in the same way that it was legalized by judicial fiat. That would just make the situation worse. Instead, he meant that the Supreme Court — or, more ideally, Congress — should fix the excesses of Obergefell to vindicate religious freedom and prevent Obergefell from propping up anti-religious bigotry.

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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.

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