ESSAY
Justices Thomas and Alito War on Marriage Equality with Intellectual Dishonesty and Lax Analysis
In the depths of an arch conservcarie’s mind, evil lurks
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Author’s note: This material was originally published in the author’s answer on Quora to the question, “What are all the arguments against gay marriage?.” In its form here, it is substantially edited.
This is the third in a three-article series. Links to the other two may be found at the end of this article. With the coming appointment of Amy Coney Barrett to the Supreme Court, and Justice Thomas’ recent statement attacking Obergefell v Hodges, it behooves one to review the Obergefell decision and analyze Thomas’ statement for what it reveals about the future of Obergefell.
The footnotes are live hyperlinks. Click on a note number to be taken to the source authority.
Given Amy Coney Barrett’s “long-term association”¹ with The Alliance Defending Freedom (ADF), an “anti-LGBTQ hate group,”² and the recent declaration of war against marriage equality by justices Thomas and Alito,³ ⁴ it seems reasonably certain that the Court will revisit Obergefell v. Hodges, 576 U.S. 644 (2015) (download PDF) (there exists a constitutional right to marry that extends to same-sex couples) at some point in the near future.
It takes four justices to grant a writ of certiorari. Thomas, Alito, and Barrett are those three.
It behooves us, then, to critically examine Justice Thomas’ recent statement, in which Justice Alito joined, declaring war on Obergefell and marriage equality.
The Supreme Court’s Recent Denial of Certiorari in Davis v Ermold
On 5 October 2020, the Supreme Court denied certiorari in Davis v. Ermold, 592 U.S. ____ (2020) (download PDF), in the continuing saga of the Rowen County, Kentucky, clerk, Kim Davis, who to denied marriage licenses to same-sex couples after the Court decided Obergefell because, she said, to do so would have violated her religious convictions.
Davis came before the Court on a petition for a writ of certiorari to the Sixth Circuit Court of Appeals. The Sixth Circuit affirmed the decisions of the district court that had held: ● that plaintiffs (a same-sex couple) pled a plausible case that Davis, acting as an individual, had violated their constitutional right to marry and that the doctrine of qualified immunity did not protect her from suit, and ● that Davis, acting as an official, had acted on behalf of Kentucky, and that the doctrine of sovereign immunity protected her from suit in that capacity.
The Sixth Circuit upheld the district court’s decision.
The Court’s denial of certiorari means that the case will return to the district court to complete discovery and trial.
Justice Thomas took the opportunity to declare unforgiving war on Obergefell.
Justices Thomas and Alito agreed with the denial of certiorari but took the opportunity to issue a three-page statement⁵ declaring unforgiving war on Obergefell and same-sex couples’ marriage equality rights.
The Obergefell Decision In Obergefell, in classic, principled, legal reasoning, Justice Kennedy first recognized that there already exists, in the Court’s many opinions dealing with marriage, a constitutionally protected substantive liberty interest in the right to marry under the 14th Amendment’s Due Process Clause. The right to marry is a fundamental constitutional right that all persons enjoy. Then, the Court held under the 14th Amendment’s Equal Protection Clause that there is no sufficient reason to deny the enjoyment of that right to same-sex couples. They are entitled to the equal protection of the law. They enjoy the right to marry to the same extent as do heterosexual couples.
In a manner of speaking, Obergefell did not “legalize” gay marriage. Rather, it prohibited the states from “de-legalizing” it. Obergefell recognized an already existing constitutional right to marry enjoyable by all. Thus, without further intervention, same-sex marriage is legal under that right. What the states did in passing DOMAs (Definition of Marriage Acts) was to restrict that constitutional right to the subset of heterosexual couples. In this sense, they de-legalized same-sex marriages.
The Court’s New Composition Of the four Obergefell conservative, dissenting justices, Roberts, Scalia, Alito, and Thomas, Scalia is dead and replaced by Gorsuch. Of the five majority justices, Kennedy, the liberal swing vote, is retired and replaced by Kavanaugh, a firmly conservative justice. Finally, liberal Justice Ginsburg is dead and soon to be replaced by Barrett, a devoutly religious, sharply conservative, right-wing jurist. That gives the Court a powerful, right-wing, conservative, six-justice majority.
Thomas and Alito would set LGBT+ civil rights back to the 1950s. That majority will make law that will affect individual civil rights for a hundred years. If the Court revisits and limits or outright overturns Obergefell, it will take LGBT+ civil rights back to the 1950s, where they will stay for a century.
Thomas’ Angry and Aggressive Statement Is Intellectually Dishonest; He Demonstrates a Lax Analysis. In his statement, Thomas angrily and aggressively attacked the Obergefell majority, attributing to it several actions and motivations that it did not have. In doing so, Thomas exhibited intellectual dishonesty and lax legal reasoning.
Thomas wrote ● that the majority “read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text,” ● that the majority decision is an “alteration of the Constitution,” and ● that the majority chose to “privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment.”
These all are intellectually dishonest factual characterizations of the majority’s decision.
Citing case after case that established and recognized a substantive Fourteenth Amendment Due Process right to marry, the majority simply again recognized the preexisting right. It did not read a new right into the Due Process Clause. It did not alter the Constitution. It did not privilege a novel right over the First Amendment’s religious liberty interests. (In truth, one thinks that the First Amendment can not correctly be said to have “religious liberty” interests as that term is being advanced by the ultra-conservative, Christian right-wing.⁶)
What the majority did was to give recognition to an already established Due Process right to marry and, then, hold that under the Equal Protection Clause, there is no sufficient reason to exclude same-sex couples from the enjoyment of that right.
In dishonestly stating the facts of the majority opinion, Thomas discredits himself and brings shame to the Court. Thomas just ignores the Court’s string of prior cases establishing a substantive Due Process right to marry. That he can not honestly do.
Thomas went on to further mischaracterize the majority’s holding and opinion and to misrepresent Obergefell’s effects. He wrote ● of the majority’s “ungenerous interpretation of the Free Exercise Clause,” thus “leaving those with religious objections in the lurch,” ● that since Obergefell, other plaintiffs in litigations “have continually attempted to label people of good will [sic] as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy,” and ● that Obergefell continues to have “ruinous consequences for religious liberty.”
Plaintiffs in subsequent litigations under Obergefell do not label people of goodwill as bigots for refusing to “alter” their religious beliefs. No one seeks to have anyone alter their religious beliefs. They seek to prohibit state action that denies same-sex couples full enjoyment of the right to marry. Obergefell prohibits such state action; it does not require that anyone alter their religious beliefs. Instead, it prohibits governments from denying same-sex couples their right to marry in service to some people’s religious beliefs.
It prohibits persons in government offices from imposing their brand of religion on those who need to resort to the office for services. Persons holding government offices reaching marriage must behave in a secular way when exercising the office’s prerogatives.
Thomas would not only stop the advancement of LGBT+ civil liberties; he would rescind them and set LGBT+ people back to the 1950s.
The next step in advancing LGBT+ civil rights is to build on Obergefell and hold that persons in governmental offices of whatever nature must behave in a secular and religiously neutral way toward LGTB+ people and all others. That is the next layer in the wall of individual freedoms being built on the Constitution’s provisions.
Thomas and Alito would not only stop the next layer in the wall from being laid: they would tear down existing layers.
Thomas would weaponize the First Amendment’s religious freedom provision; Religious Liberty is the banner under which he marches. Thomas’ lax analysis weaponizes the First Amendment; Religious Liberty is the banner under which he marches. But, America is a secular state. Religious beliefs have no place in governmental action. Alito joined Thomas. Barrett is demonstrably of the same mind. With them on the Court, joined by the remaining conservative justices, Roberts, Gorsuch, and Kavanaugh, Obergefell will almost certainly be revisited and limited or outright overruled.
That will have disastrous consequences for LGBT+ peoples’ marriage equality rights and hugely negative implications for all LGBT+ civil rights, e.g., the right to adopt, survivor’s rights, and tax law standing.
Thomas but echoes the rhetoric of right-wing Christian commentators.
On 22 June 2020, there appeared an optimistic opinion piece in the New York Times titled We Can Find Common Ground on Gay Rights and Religious Liberty. Co-authored by friends self-described as a gay atheist (Jonathon Rauch) and a straight Christian (Peter Wehner), the piece champions the Fairness for All Act, a bill (HR 5331–116th Congress (2019–2021)) introduced in December 2019 in the House of Representatives by Rep. Chris Stewart (R UT).
In the opening two paragraphs, the authors wrote that Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020) (PDF copy available at SupremeCourt.gov) (Title VII prohibition against discrimination on “the basis of … sex” includes sexual orientation and transgender status as protected classes)
horrified many social and especially religious conservatives, who see a net of cultural and legal intolerance tightening around them.
‘It is hard to overstate the magnitude of this decision, and the size of the loss to religious and social conservatives,’ the Christian blogger Rod Dreher wrote. ‘There is no safe place to hide from what’s coming.’
We Can Find Common Ground …, supra.
In proclaiming that Obergefell continues to have “ruinous consequences for religious liberty,” Thomas both echos and gives prominence and credence to people like Christian blogger Rod Dreyer and their cries of horrific loss to religious conservatives who can find no safe place to hide.
One struggles to describe in measured terms and tone the immediate, visceral, and incandescent outrage those three sentences quoted above evoke in one. To hear them repeated and amplified by a Supreme Court justice magnifies to solar proportions one’s horror. Horror at the net of cultural and legal intolerance about to be tightened by the new Court around one in the name of Religious Liberty.
Can anyone sense the irony attendant upon the “horrified” religious conservatives feeling a “net of cultural and legal intolerance tightening around them?” To one’s mind, it’s their net that ensnared one and one’s kind for 60 years, being cast off and thrown back upon them. Justices Thomas and Alito appear not to like being snared in the net any more than do all LGBT+ people.
Thomas’ statement destroys any hope of common ground between LGBT+ civil liberties and the Religious Liberty of the conservative Christian right.
Whether there will be common ground⁷ between LGBT+ civil rights and Religious Liberty will depend entirely on the conservative Christian right. For it is they who have weaponized the First Amendment’s religious freedoms. It is they who would enshrine in secular law their ‘religious right’ to discriminate not just at the doors to their homes and churches but rather also at the doors to their hotels, fast food chains, home-improvement stores, business offices, and government offices.
That, Obergefell and Bostock have told them, they can no longer do.
One submits that, no matter how apparently fair any compromise appearing to establish such common ground seems to be, such a compromise will not be viable in the long term.
Like the 1850 Compromise,⁸ it will succumb to the forces of change.
A people denied some part of their individual civil liberties will not be content with the apportioned measure. No more so will an oppressor granted only so much leave be content with partial paramountcy.
It is not the Supreme Court’s job to come down in favor of the oppressor, of the tyranny of the minority. It’s the Court’s job to protect the oppressed, to see to it that those individual civil liberties enshrined in the Constitution be given effect.
Forgive one’s ill-temper, but …
One begs forgiveness for one’s ill-temper, but one has little empathy for the righteous, conservative, Christian blogger who bewails the “magnitude of the loss” visited on him and who can find “no safe place to hide from what’s coming.”
If Thomas’, Alito’s, and now apparently Barrett’s sentiments manifest into reality, it’s oneself who again will have no safe place to hide from what designs they have coming.
Perhaps it would be best if the conservative Christian right accompany all LGBT+ people back 60 years and join them in the closet. It was the only safe place to hide.
This is the third in a three-article series.
The first and second are
