“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,” wrote Thomas, who was joined by Justice Samuel Alito. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”
Thomas made the statements about Obergefell while denying a petition from Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples, citing her Christian beliefs. She has been involved in litigation ever since and asked the Supreme Court this year to overturn an appeals court decision that held her liable for violating people’s rights as an elected official.
The Supreme Court refused to hear the case. Thomas and Alito agreed with the Court because Davis’s case “does not cleanly present” a chance to overturn Obergefell, but they explained exactly why they think the landmark marriage equality decision is unconstitutional.
Thomas called Davis a “devout Christian” who was “one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision.” He wrote that now Christians who oppose LGBTQ equality are being branded “as bigots.”
When bakers refuse to sell cakes to same-sex couples are held liable for discrimination, Thomas argued, the problem is not just anti-discrimination laws but Obergefell itself because it legalized marriage equality.
“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,” he wrote.
“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.”
While Thomas and Alito don’t currently have a majority of the court to overturn the decision, the ACLU’s Chase Strangio noted on Twitter that it’s unusual to see Supreme Court justices openly show their desire to overturn a five-year-old decision.
“The brazenness of the rightward direction of the Court is a threat to even the most basic expectation of legal protection,” he tweeted.