Justice Clarence Thomas, joined by Justice Samuel Alito, lashed out on Monday at the religious liberty implications of the Supreme Court’s 2015 decision that cleared the way for same-sex marriage nationwide.
Thomas wrote that the decision, Obergefell v. Hodges, “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.”
Thomas’ strong opinion came down on the first day of the court’s new term, and reflects the fact that critics of the landmark opinion from five years ago that was penned by now retired Justice Anthony Kennedy, are still infuriated by its reasoning. They believe the court should have left the decision to the political arena and have long said that it will infringe upon the rights of those who have religious objections to same-sex marriage.
Supporters of LGBTQ rights are fearful that the court is poised to continue a trend from last term, ruling in favor of religious conservatives in key cases.
The case that prompted Thomas’ statement concerned Kim Davis, a former county clerk in Kentucky who gained national attention in 2015 and was jailed after declining to issue marriage licenses out of an objection to same sex marriages. The high court on Monday declined to hear an appeal in her case.
Thomas called Davis “one of the first victims” of the court’s “cavalier treatment of religion” in the Obergefell v. Hodges decision but warned “she will not be the last.” He said that her case was not properly presented before the court, but he urged his colleagues to revisit the religious liberty implications of the landmark opinion down the road.
He warned that the court had chosen to “privilege” a “novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, any by doing so undemocratically, the Court has created a problem that only it can fix.”
Thomas also noted that he agreed with the decision to not take up the case, writing that it did not “cleanly present” important questions raised about the decision in Obergefell v. Hodges.
Steve Vladeck, a CNN legal analyst and University of Texas law school professor, said the opinion is a “telling and ominous” message for the justices to send.
“The opinion lays down a marker that at least some of the justices already view the court’s recognition of a constitutional right to same-sex marriage as an affront to religious liberty, and so may well use the latter to scale back the former in future cases,” Vladeck said.
“Especially at this moment in time, with major religious liberty cases already in the pipeline and in the middle of a contentious confirmation fight the result of which could move the court sharply to the right on these issues, it’s a telling – and ominous – message for the court’s two longest-serving conservatives to send,” he added.