U.S. Supreme Court

Thomas and Alito blast same-sex marriage decision as SCOTUS declines Kentucky clerk's case

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U.S. Supreme Court Justices Clarence Thomas and Samuel A. Alito Jr. on Monday blasted the high court’s 2015 decision finding a constitutional right to same-sex marriage for its “cavalier treatment" of religious objections to such unions.

“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,” Thomas wrote in a statement joined by Alito.

The justices criticized Obergefell v. Hodges while agreeing with the Supreme Court’s Monday decision not to hear the case of former Kentucky clerk Kim Davis, who was briefly jailed for contempt after refusing to issue same-sex marriage licenses.

The justices said they agreed with the cert denial because Davis’ petition “does not cleanly present” questions about the scope of the Obergefell decision. But they were sympathetic to her dilemma.

Davis is a devout Christian who thinks marriage is between a man and a woman, Thomas wrote.

“Davis may have been one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last,” Thomas wrote.

“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. It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law. But it is quite another when the court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the free exercise clause, leaving those with religious objections in the lurch.

“Moreover, 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.”

The Washington Post and CNN had coverage of the statement.

Hat tip to the American Civil Liberties Union, which issued a statement by James Esseks, director of the ACLU’s LGBT & HIV Project.

“It is appalling that five years after the historic decision in Obergefell, two justices still consider same-sex couples less worthy of marriage than other couples,” Esseks said.

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