Law & Government

Is Same-Sex Marriage Secure?

Will a rightward shift on the bench would result in the reversal of Obergefell? Probably not.


Kim Davis, the former Kentucky county clerk who attracted national attention in August 2015 when she refused to issue marriage licenses to same-sex couples, was briefly back in the news in October. Davis had asked the U.S. Supreme Court to override a lower court decision that said she could be personally sued by people whom she had denied marriage licenses. The high court declined to take up her case.

Without dissenting from that decision, Justice Clarence Thomas, joined by Justice Samuel Alito, wrote a statement arguing that the Court has still not properly addressed the concerns of people who object on religious grounds to the legal recognition of same-sex marriage mandated by the Court's 2015 decision in Obergefell v. Hodges. "If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs," Thomas wrote.

"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," Thomas added. "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.'"

The two justices both dissented from the original Obergefell ruling, and this statement came just a week before the Senate began considering President Donald Trump's nomination of Amy Coney Barrett, who was eventually confirmed to replace Justice Ruth Bader Ginsburg. The timing led Court watchers and LGBT activists to wonder whether the rightward shift on the bench would result in the reversal of Obergefell and the loss of nationwide same-sex marriage recognition.

That outcome seems improbable in light of a decision the Court handed down in June. In Bostock v. Clayton County, a six-justice majority ruled that the Civil Rights Act of 1964 covered workplace discrimination against LGBT people. The decision was penned by Justice Neil Gorsuch (another Trump appointee) and joined by Chief Justice John Roberts.

Even Thomas and Alito are not calling for an end to gay marriage, although it's clear they oppose court-ordered recognition. They do, however, want the Court to protect the religious liberty of people who object to recognizing same-sex marriages.