Two US Supreme Court Justices have levelled criticism at the landmark Obergefell v. Hodges ruling, which guaranteed marriage as a right to same-sex couples.
Joined by Justice Samuel Alito in an opinion denying a petition for certiorari — ie for the Supreme Court to review the decision of a lower court — in the case of Davis v. Ermold, Justice Clarence Thomas wrote of the 2015 ruling on Monday, the first day of the Supreme Court’s new term, that it “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 [a constitutional right] concerns that much easier to dismiss”.
The Davis case involves the former clerk of Rowan County, Kentucky, Kim Davis, who stopped issuing marriage licenses — as it was her sworn duty to do — after Obergefell, and refused to allow her deputies to issue them to anyone. Thomas and Alito joined the court in denying review of her case, which arose from her being held personally liable for damages to those, whose licenses she refused, but strongly criticised the opinion that gave rise to the controversy.
Thomas observed that had it been enacted through legislation, rather than a court ruling, “accommodations” could have been made for those who hold the belief that “marriage is a sacred institution between one man and one woman”.
He cited Justice Alito’s previous statement that allowing “governments, employers, and schools” to “vilify” those with those religious beliefs “as bigots”, saying it had not taken long to become reality.
The 5-4 ruling of the original case, written by Justice Anthony Kennedy, found that same-sex couples could not be “excluded from one of civilisation’s oldest institutions” and that the denial of marriage to same-sex couples would “diminish their personhood”.
Concluding his statement, Thomas wrote: “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.”