Justices Thomas, Alito aren't yet done with marriage equality

Few saw the issue of marriage equality as being on the ballot in 2020. It may be time to revisit that assumption.
Image: Clarence Thomas
U.S. Supreme Court Justice Clarence Thomas in his chambers at the U.S. Supreme Court building in Washington on June 6, 2016.Jonathan Ernst / Reuters

It's been several years, but in 2015, Kim Davis became a prominent political figure and a cause celebre in religious right circles. The Kentucky clerk was responsible for issuing marriage licenses, but Davis wanted to reserve the right to deny licenses to couples she deemed morally inferior. [Update: see below]

A series of legal and political fights soon followed, and her case was ultimately appealed to the U.S. Supreme Court. Yesterday, the justices declined to take up her case, but two of them didn't want the matter to go by without comment.

Although the court was apparently unanimous in refusing to hear her appeal, two of the conservative justices said the 2015 ruling making same-sex marriage the law of the land amounted to a "cavalier treatment of religion." Davis "may have been one of the first victims" of the decision, "but she will not be the last," wrote Clarence Thomas for himself and Samuel Alito.

At issue, of course, was the Supreme Court's ruling in Obergefell v. Hodges, the 2015 ruling that brought marriage equality to the entirety of the United States.

As far as Clarence Thomas and Samuel Alito are concerned, that ruling treated religion in a "cavalier" way and turned conservatives like Kim Davis into a "victim."

Thomas suggested that justices should revisit the issue because, as he put it, the Supreme Court has "created a problem that only it can fix." Until then, the justice added, the status quo will have "ruinous consequences for religious liberty."

Ordinarily, it'd be tempting to simply roll one's eyes at this, but the circumstances suggest otherwise. Slate's Mark Joseph Stern explained:

It's no secret that Thomas and Alito oppose equal rights for LGBTQ Americans. But their Monday opinion is still profoundly alarming. These two justices did not simply state that marriage equality has no basis in the Constitution. They wrote that marriage equality is an affront to the Constitution, one that trammels the First Amendment rights of Christians. And they did so just weeks before Election Day, as Donald Trump attempts to ram another far-right conservative onto the Supreme Court, creating a 6-3 conservative supermajority. Their message is clear: If Trump installs Amy Coney Barrett, the Supreme Court will take aim at marriage equality.

To be sure, two far-right justices are obviously not a majority. But when Obergefell v. Hodges was decided, five justices voted in support of marriage equality. One of those five has already been replaced by a more conservative successor, and if Republicans have their way, Ruth Bader Ginsburg will also soon be succeeded by a jurist whose vision bears no resemblance to the iconic late justice.

All of which is to say, when the Supreme Court ended discrimination against same-sex couples, it seemed to settle the matter once and for all. Yesterday morning, Thomas and Alito reminded the nation that the high court may yet revisit the issue -- and could rule very differently next time.

Few saw the issue of marriage equality as being on the ballot in 2020. It may be time to revisit that assumption.

* Update: Liberty Counsel, a far-right legal group that represented Davis, emails that the former Kentucky clerk, suspended "all marriage licenses equally under her jurisdiction," not just licenses for couples she considered morally inferior.