It’s the start of a new Supreme Court term, one that’s already been thrown into no small amount of turmoil by the death of Justice Ruth Bader Ginsburg and the uncertainty surrounding Donald Trump’s nominee Amy Coney Barrett—whose timeline for confirmation has now been disrupted by the unfortunate reality that Republican Senators are getting sick with covid-19, possibly from her Rose Garden party that may have been a covid-19 superspreading cesspool. (God: real???) But on Monday, Justices Clarence Thomas and Samuel Alito signaled where their long-term priorities stand—they think it would be a great idea to overturn Obergefell, the landmark SCOTUS ruling that legalized gay marriage. Amy Coney Barrett is probably salivating right now, just thinking about the prospect of an even more conservative Supreme Court that will entrench minority rule for decades! Is God real or not??? Who’s to say?
In announcing that the court had declined to take up a case involving Kim Davis, the former Kentucky clerk and bigot who refused to issue marriage licenses to gay couples once marriage equality was the law of the land, Thomas wrote a statement, which Alito co-signed, in which the two sure seemed to argue for overturning Obergefell. Their worry? That marriage equality paints people opposed to marriage equality (rightfully) as religious bigots, and that enforcing anti-discrimination laws is actually a form of discrimination against Christians, the real victims.
“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,” they 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,” they concluded, adding, “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”
While the Supreme Court isn’t hearing any cases this term that directly challenge Obergefell, they are hearing a case on November 4 that revolves around the question of whether a religious institution can legally discriminate against queer couples. In that case, Fulton v. City of Philadelphia, the court will be ruling on whether the city of Philadelphia violated the First Amendment rights of a Catholic foster agency that the city cut ties with after they learned that the agency refused to place children with gay couples, due to their objection to gay marriage.
As NPR’s Nina Totenberg noted, the city’s decision to cut off the agency was found by lower courts to be in line with a 1990 Supreme Court decision, authored by Justice Antonin Scalia, that “declar[ed] that religious groups are not entitled to exemptions from neutral, generally applicable laws.” But, she added, “four of the court’s current conservatives have expressed an interest in overturning that decision, and with the addition of Barrett, there may well be a majority.”