Law

Is Same-Sex Marriage Secure?

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

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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.

NEXT: Brickbat: Blocked from the Church

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  1. AYFKM…Is same sex marriage secure? This article reads like a totally irrelevant question looking for a problem.

    With a POTUS Biden/Harris in office, the question is moot. The question is moot with POTUS Trump.

    1. But what does Andrew “Poz Pig” Sullivan think? Find out on his Substack.

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    3. Trump was the first pro same sex marriage president as he campaigned. He was for it before Biden or Obama.

    4. That’s the thing with activists. They can’t take “yes” for an answer. They always have to be in full “combat” mode or they don’t know what to do with themselves.

      Just wait and see what happens with the Panty-fa bums. They’re already casting about for a new dragon to slay. It’s not like they’re gonna go out and get a job.

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  2. Obergfell is a superprecedent like Roe v Wade, not a temporary mistake like Citizens United or Heller. The ratchet only goes one way.

    1. Time to identify as a non-Newtonian transfluid.

      1. That reminds me–I need to check the transfluid in my truck.

        1. I use cisfluid.

          1. You will get better mileage with genderfluid.

            1. Just don’t use it to lubricate your turn signals. Emergency blinkers 24/7 until you flush it out.

            2. What happens if it changes while I’m driving?

              1. It gets shifty-eyed and drives you bonkers.

    2. Until Trump’s court packing has been corrected by adding enough justices, no superprecedent is safe.

    3. You do realize they were putting gay people in prison not so long ago and many of those laws are still on the books because apparently many Republicans would like tp enforce those laws again someday?

      You’d think a guy who compared having to do business with gay people as some great injustice would have something to say about laws that are literally designed to imprison gay people for existing.

      1. >imprison gay people for existing
        Don’t be hyperbolic. The laws you are referring to prohibited sodomy, a perfectly natural activity that needs to be taught in Kindergarten classes so children don’t damage their delicate rectums when sexually experimenting.

        1. Is your brand of sodomy a synthetic activity?

      2. Many of those laws are still 9n the books because legislatures generally do not outright remove laws from the books. There is an entire genre of nonfiction devoted to documenting strange, archaic laws that are technically in place but never enforced.

        1. They do occasionally remove them for symbolic reasons. But even that costs the legislature time and money which could be better spent on laws that are enforceable.

          Plus, if they keep them on the books, it gives people something to bitch about when they run out of “actual” things to bitch about.

      3. You’d also think, as Mickey Rat points out, that if gay people really cared about the laws on the books allowing them to be arrested, they’d move to repeal them. Of course, a good percentage would actually prefer to take it up the ass from Papa Government in exchange for relatively empty promises that they really are loved.

        1. The government hates competition

  3. Religion is used to justify slavery, racism, murder, hatred of gay people, torture, theft, you fucking name it, so where does this end? Does Al Qaeda get special permission to live their faith, too?

    1. Religion is also used to justify anti slavery, the brotherhood of man, charity and against nihilistic thinking and actions. There is no human philosophy or institution that has a pure history that has much of a history because humans are flawed creatures, prone to error.

      1. The New Soviet Man didn’t have religion and he was perfect in every way because of scientific communism.

        1. What’s the difference between religions with a god(s) and religions without?

          1. about $3.50

            1. Gawdamn Loch Ness Monster

          2. You get more holidays.

      2. That’s all very nice, but it shouldn’t matter what the source is for your moral beliefs are. If you violate the rights of another, you should get no special consideration just because your religion advocates it.

        We can debate whether or not the legal rights you want to violate should exist in the first place, but that’s a separate thing. Religious preferences competing with someone else’s rights should have as much legal protection as non-religious preferences to the same thing.

        If you work for the government at the job of granting marriage licenses, but you refuse to do your job correctly, for religious reasons or any other reasons, you should probably look for a different job.

        Now if you work at a job where it’s easy enough to make some accommodations for your religion, your allergies, your phobias, your favorite color, etc., then that’s cool. But I see no reason why mystical beliefs should be considered above any other preferences.

        They are either reasonable to accommodate or they aren’t. As long as your preferences don’t violate the rights of anyone else, there should be no laws geared to persecute you for your preferences.

      3. Here’s a problem with that, though: Christianity claims, not to be a human philosophy, but a divinely-inspired worldview and a precursor to morality, yet it took 1800 years to get its shit straight on whether it is right or wrong for humans to hold other humans as property.

        Also, another religion that claims to be divinely inspired–Islam–still holds slavery to be justified in the nations where Islam rules, i.e. The Gulf States of the Saudi Peninsula, Sudan, Mali, Mauritania, and other Islamic-ruled nations.

        Men don’t corrupt religions to justify slavery. Rather, religion makes humans so preoccupied with the Supernatural that they neglect, excuse, and even defend slavery and injustice in the Natural Universe in which they live.

    2. Omar “No eating ass during my holy fast” Mateen proves that the LGBTQ+ community needs to be more tolerant of Muslims and their religious and cultural taboos.

      1. “No eating ass during my holy fast”

        That is an outrage and the height of intolerance!

    3. That fedora doesn’t tip itself, right Strazole?

    4. Atheism and Statolatry are also religions used to justify all those things.

      And the vast majority of Democrat voters in America fall under either of those religious beliefs.

      1. Although some religions allow Atheism, such as Buddhism, Jainism, Confucianism, and Taoism, Atheism itself is not a religion.

        Atheism is not a belief, but a lack of belief in the existence of a God or Gods. As such, it is by itself, no more a religion than “off” is a television channel.

        You may also want to read up on Ayn Rand, the author who was the source of your namesake. She was an Atheist as well.

    5. I know, right.

      Justices Thomas and Alito are claiming that Obergefell violates religious liberty. Where is there a “religious liberty” of government officials like Justices O’ the Peace and Clerks of Court to refuse to do their clearly-specified jobs to perform and recognize marriages? Could a government official who believes in Christian Identity or The Nation of Islam refuse to perform interracial marriages in the name of “relligious liberty?”

  4. Interesting how the wedding rings pictured in a “same sex marriage” article are for an opposite sex couple.

    1. I thought they were cock rings for an Asian / white homosexual “couple”.

      1. Lacist.

        1. You mean £acist.

          Not craw, C£aw!

    2. They’re both plain bands, obviously two men. If it were an opposite sex couple, one of them would be a diamond ring.

      1. Maybe I have been missing the trends, but the wedding ring is a plain band, the diamond is on the engagement ring.

      2. The diamond ring is for engagement. The wedding band is plain.

    3. Look “traditional” marriage is a system to perpetuate the patriarchy and oppress women and non-heteronormative cultures. It should be rejected in all forms. Except for the ceremonies, sworn oaths, gifts, legal and tax benefits, and mutual ownership/enslavement iconography.

      This is just about marriage and has nothing to do with the explicit desire to purge wrongthinkers and disbelievers. That you look at those two bands and see anything besides nuptual bliss means you’re part of the problem.

    4. How do you know they aren’t for a bear and a twink?

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  6. Government shouldn’t be involved in marriage outside of contract enforcement. It should not have the ability to define the terms of a marriage during the divorce stage. It is ripe for abuse as seen in family courts.

    Reason shouldn’t give a fuck about same sex marriage. It should care about removing state defined contractual relationships.

    1. But how can any court enforce a contract unless it can identify or recognize a contract? You can’t get government out of this unless you abolish courts.

      1. I don’t think Jesse is on the crazy side of this argument. Courts identify contracts that aren’t legislatively proscribed all the time.

        The issue isn’t that the government should have absolutely zero role. It’s that it shouldn’t have a top-down, universal role.

        1. Top down universal roles are an artifact of the patriarchy.

          Down with the Man! Undefine marriage.

      2. Secular courts enforce religious contracts all the time. It’s called a morality clause. If a contract references rules laid out in a religious document, the court can refer to that document. You don’t need to abolish courts to enforce a religious contract.

        Ever see those clickbait articles on conservative sites about “judge cites Sharia law in ruling”? It’s because a morality clause referred to something in Sharia Law.

    2. You are right about what ultimate goals.

      But libertarians have to often not let the perfect be the enemy of the good.

      Should we not give a shit about mixed-race marriages too and just let the bigots difine the laws within bigger institutions that we don’t particularly like the State controlling in the first place?

      If we think education should be privatized, should we not give a shit about laws keeping black kids out of certain public schools?

  7. If government is what we organize to do to each other, religion is how set the agenda.

  8. gay marriage cannot be overturned, because it is impossible for anyone to have standing to sue. you can’t bring a lawsuit because you think somebody else should not have a right that does not actually impact you in any way. this was always a scare tactic to get democrat votes.

    1. Oh, you can have damages, all right. Like if you give spousal benefits. Or if you’re claiming a superior inheritance right. Like if someone has an opposite sex spouse and then a prior same sex spouse emerges or vice versa.

      1. nah….. survivor-ship benefits dissolve as part of the first divorce. if the first marriage was not legally ended, the conflict would have nothing to do with the sex of the first or second partner….. it would be the entry into a new contract without first dissolving the first one. the ability of gays to marry is never a factor. points for creative thinking, though.

        1. The argument would be that the first contract didn’t need to be dissolved because it was never a legal contract in the first place. Therefore, the “second” opposite-sex marriage was in the fact the first, and thus only, legal marriage.

          It would have to come from one of the states that didn’t recognize same-sex marriage prior to Obergfell and never actually amended their laws afterward. SCOTUS would then find that that the same-sex marriage was not a legal marriage per state law, and Obergfell would be effectively overturned

    2. Any state can try to restrict gay marriage, the wannabe married couple can sue and the case can then go to the supreme court. It probably won’t happen but not because of any standing issues.

    3. The states themselves have a right to sue, as their authority is being infringed.

      If nothing else, a state could simply *stop* honoring gay marriage, forcing the *other* side to sue.

  9. Gotta keep people scared. Otherwise they might notice the creeping loss of rights.

  10. Decades ago, when his writing still meant something (actually it still meant something just a few years ago), Jacob Sullum wrote about this (not about same sex marriage, but the general principle of needing a religious reason to be left alone) here as “The Trouble with Exceptions”.

  11. What possible reason is there for a government to know or care about who is “married” to who?

    1. Can’t tell if sarcastic.

    2. If a contract produces property and the resulting property isn’t covered under the contract, government, well before the word existed, is the entity that arbitrates it. In the case of marriage, said property can include or be considered to include children, which further complicates the issue.

      Not to say that government should decide a priori or say what kind of contracts can and cannot be allowed, but the removal of government from marriage licensing doesn’t remove the entirety of government from all social contracting everywhere.

  12. Science.

    Do courts use science in their decisions? I’m guessing they don’t.

  13. What is interesting is the idea of protection of selected religious beliefs. Do we protect the Moslem or Jewish grocery store employee who refuses to handle any packages of pork chops. What about the LDS Starbucks barista who will not prepare a cup of caffeinated coffee. Before SCOTUS sets out to protect any religious beliefs they should set out what type of religious beliefs are in-line for protection. I certainly believe their are some areas. I would not force a minister to perform a gay wedding, not would I ask a Rabbi or Iman to marry a couple of mixed faiths. But the idea that public clerk can deny couple licenses or that that a baker can refuse to make a cake is being too broad in allowing for religious beliefs.

    1. What about the LDS Starbucks barista who will not prepare a cup of caffeinated coffee.

      The first sentence is a reasonable question that has an answer. This sentence convinces me that you aren’t worth the answer.

    2. “that a baker can refuse to make a cake is being too broad in allowing for religious beliefs.”

      Can I go into a cake store run by Muslims and force them to bake me a cake with a cartoon of the prophet on it?

      Can I go into a cake store run by orthodox Jews and force them to deliver the cake on a Saturday?

      Can I go into a cake store run by Christians and force them to decorate my cake with “There is no god but Allah, and Muhammad is his messenger”?

      1. All good questions and addresses my point that before SCOTUS can protect religious beliefs it need to define which beliefs get protection.

        The second one is easy because the orthodox Jewish bakery does not discriminate in that it serves no customers on Saturdays, be they Jew, gentile, gay or straight. Same as Gus’s bakery is closed every Monday.

        As for the other two;
        1. Does the first bakery normally put religious cartoons on their cake? If they do I am not sure why they should not do it if requested.
        2. Again does the bakery put religious messages on cakes and if it does why not put on the one requested? The cake reflects the purchaser’s beliefs not the baker’s.

        1. 1. Can you say Charlie Hebdo?

          “Islam considers images of prophets disrespectful and caricatures of them blasphemous.” “the Salafi position remains utterly uncompromising: Images of the Prophet and his companions are not permissible whatsoever.”

          Presumably, the Muslim cake decorator would have a fundamental problem creating artwork that is blasphemous to him. As I recall, in one of the gay wedding cake cases the bakers offered to sell any cake in the shop to the gay couple, but refused to provide decoration specific to the gay marriage.

          Can a Jewish baker refuse to decorate a cake with swastikas? Can a gay baker refuse to do business with Westboro Baptist Church? Can a gay baker refuse a request to put “God hates fags” on a cake? Can a black baker refuse to provide confederate flag decorations on cakes for a KKK meeting? Can a black baker refuse to even sell a cake to a person who comes into the store in wearing a t-shirt with confederate flag with words “White Power”? Can a baker refuse to decorate a cake with depictions of a penis or boobs, etc.?

          If it’s OK for them to refuse business in certain situations, why should it not be ok to refuse for other reasons (like gay marriage)? Or, if it’s not OK to refuse gay marriage cakes under threat of force from government, why is it not required to produce all the cakes above under threat of force from government?

          1. For the record, as objectionable as some of these are, none are examples of violations of a person’s religious beliefs.

            “Can a Jewish baker refuse to decorate a cake with swastikas? Can a gay baker refuse to do business with Westboro Baptist Church? Can a gay baker refuse a request to put “God hates fags” on a cake? Can a black baker refuse to provide confederate flag decorations on cakes for a KKK meeting? Can a black baker refuse to even sell a cake to a person who comes into the store in wearing a t-shirt with confederate flag with words “White Power”? Can a baker refuse to decorate a cake with depictions of a penis or boobs, etc.?”

            1. I know. They are examples where most people would say “sure, you can discriminate against *that* person based on your personal objections.” Even thought your personal objections are not *specifically* called out as protected constitutionally and by statute (as RFRA does for religious objections). Why is ok to discriminate against people demonstrating objectionable positions–those people are anathema to the bakers personal belief system, and few would fault them for refusing to do business under those circumstances–but not for religious beliefs?

              If a Muslim believes he is forbidden by his religion to decorate a cake with an image of Muhammed and refuses an otherwise legitimate customer request to do so, will we be sending the enforcement police to his shop to force him to violate his religion? If not, then if a person believes he is forbidden by his religion to decorate a cake celebrating gay marriage, why does this warrant the enforcement effort but the former doesn’t?

            2. Sorry, I flagged your comment by accident. It happens on my phone sometimes. I very much doubt they’ll remove it though.

              But while I’m commenting I might as well ask, why should any religious preference get any more legal right than any other preferences.

              In my mind, I think a private business should have a right to refuse service to anyone, even for reasons I find reprehensible.

              That’s very different from a government employee refusing to do her job for any reason of personal preferences, whether they be motivated by supernatural beliefs or any other beliefs.

              But since the law doesn’t agree with me about private actors refusing service for any reason, let’s just say as far as the law reasons they are protecting a right of some kind. I don’t see why there should be a religious exemption that allows you to violate that right, where a secular bigot doesn’t get an exemption.

              Can you give me an example where the law should allow special treatment to violate someone else’s rights for religious reasons exclusively?

          2. je suis Charlie.

      2. are any of those something they would normally sell to someone else? that is always the deciding detail for me. if the difference is specific things i am asking for, they can deny it….. if the difference is who i am, they can’t. as long as what you are asking for is something identical to what they would normally sell to anyone else, it is reasonable to expect them to sell it to you.

        1. I think you have the point. I can not withhold a product or service I would provide to others.

          1. So if Donald trump supported wanted to buy a bunch of “election fraud” cupcakes, a Democrat shop owner cannot refuse the order?

            1. Mix it up. Pay to make them bake an election fraud cake and then run an ad in the local paper and Tweet advertising that the bakery will bake an “election fraud” cake for you.

        2. What if I’m willing to bake a “My Struggle” cake in any language besides German?

    3. i think the problem with what we have seen with the “religious beliefs” rational is that many claiming it are not being honest….. it is an excuse and not an actual reason.

      1. Agreed.

        1. So a woman goes on TV and says “I’m a man now.” the world is supposed to immediately accept it, use a different name and pronoun, and never even *think* about disagreeing with the assertion…but a person says “that’s against my personal and deeply held religious beliefs” and we get to say “No it isn’t.” to them? Yeah, that seems fair.

          1. Yes, because xer/its agreement with a 20-yr.-old doctrine that they abandoned their old doctrine for a few years ago is obviously more deeply held than the doctrine that religious-types have been persecuted for clinging to for millenia.

            Not to mention that trannies are free to abandon conventional doctrine for pretty much any reason they see fit while many bakers, photographers, jewelers, etc. can’t and can only defend themselves under the law by adopting a religious defense.

      2. >>many claiming it are not being honest

        one’s claims are not subject to another’s definition of honest

        1. Also, the religious-types said that the homosexuals were being dishonest first. They called it.

    4. Jews are allowed to sell pork or any non kosher food according to most rabbis. Muslims are as well I believe.

      1. Bakers are also allowed to sell wedding cakes to gay couples. I am not aware of any church that forbids the practice. In most cases these are positions individuals take up and then justify with religious beliefs.

        1. It is not a question of allowing.

          There is a side stepping of the issue I am using. I think the court did as well which may be the wise thing.

          It is not for to state to decide what is or is not a legitimate religious belief or practice on an individual level. Every person practices or believes differently even in established major religions.

          So an artist who accepts commissioned work does not have to take all of them. The reason is irrelevant. “I don’t do elephant paintings” it doesn’t matter why.

          So you want to tell this baker that it is not true Christianity to refuse the cake. It is not for any of us to decide in the public sphere.

    5. The cake debate again. I have always thought the difference was a custom wedding cake is a creative work of art. A cake off the shelf is another matter. I think this was true in the case. The individual was a customer there.

      I think the case pretty much went down on those lines.

      1. In one of the cake cases, the store offered to sell any cake off the shelf. They just would not customize the decorations to celebrate a gay wedding.

    6. All of these moral quandaries instantly disappear if we simply allow individuals to choose who they associate with

      1. Not an issue for a true libertarian or conservative. It is only the vile leftist who wishes to make others his slave.

  14. Democrats for years kept promoting the defense of marriage act. Biden voted for it as senator. Democrats have been fucking up people’s lives for two centuries. They promoted slavery then Jim Crow laws then fought against the civil rights acts. Then passed huge social welfare programs that kept people in the poverty cycle. They got us involved in unnecessary wars raised taxes & promoted socialism. In short your vote for any democrat then and now was a vote for enslaving the population.

  15. Oh Jesus, is this going to be the new Roe V Wade? Are we really going to get this handwringing that Gay Marriage is “under imminent threat” while it remains the law of the land for… well, forever?

  16. Same sex marriage is secure just like abortion is secure. The horses have left the barn. There are still a few peripheral issues left though. Doesn’t mean those peripheral issues will nullify same sex marriage and abortion.

    The activists are just scaremongering.

    Does the Federal or state governments have to pay for abortions? That’s a valid question. It does not mean that the answer “no” will prohibit abortion. It just means those who oppose it won’t have to fund it.

    Likewise, will county clerks who oppose same sex marriage have to issue same sex marriage licenses. The correct answer is “If you don’t like your job find a new one”, but even if the SCOTUS rules otherwise, it will won’t invalidate same sex marriage. Another clerk at the office issues the license instead. There is not conundrum here worthy of a national pants shitting like the activists are trying to make it seem.

    And note my correct answer above: If you don’t like your job you are free to find a new one. If you job requires you to issue licenses then you need to issue licenses. Or you’re fired. This is not a difficult idea to work through. Jews figured out how to be employed without having to work on Saturdays. It’s not that hard to do. Surely a someone opposed to miscegenation can figure out how to work for the county gub’ment without having to be a issue marriage licenses for mixed race couples. But if they can’t, find another job.

    I mean seriously, this issue has already been decided. And it was decided by Churches actually reading their Bibles and realizing there was nothing in it about mixed race marriages. And there’s really not much in the Bible about same sex marriage either. Heck [sic], there are even gay saints, they just don’t get talked about in Sunday School.

    1. Who are these gay saints you mention?

      1. And how many of them play for New Orleans?

      2. A lot of people were gay a hundred or more years ago. They even donned gay apparel.

    2. “And there’s really not much in the Bible about same sex marriage either.”

      You’re joking here, right? There’s nothing in the Magna Carta on it either, or the Declaration of Independence, or just about any other document that’s not from the last few decades, because it simply didn’t exist.

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  18. how much would would a subheadline need if the subheadline needed no would?

    1. It would need as much would as a subheadline would if a subheadline would need would.

  19. also the way to fight it if you’re really that type of person is to ignore the institution altogether … give it away

  20. At this point, overruling Obergefell seems really unlikely, but wouldn’t really matter either. Nearly all states would legalize anyway. On this one, the Supremes were jumping out front to lead the parade.

    1. Sooo…Does this mean Rod Dreher will still be in hiding in his Benedictine Basement?

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  22. And the U.S. Constitution delegated the power to define ‘Marriage’ where???? Rand Paul said it best, “I don’t want my guns or my marriage registered in Washington.”

    Just another example of problems arising from a tyrannical and UN-Constitutional federal government.

  23. everyone knows the Trump Scotus will overturn same sex marriage AND abortion, right after they finish their primary mission of overturning the results of the election.

    the media told us all this would happen months ago

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