OutCasting comments on statement against marriage equality from Supreme Court Justices Clarence Thomas and Samuel Alito

November 1, 2020 (updated June 2022) — In 1996, as the early efforts to establish marriage equality started to take hold in a small number of states, a panic developed quickly about how allowing same-sex couples to marry would "destroy" the institution of marriage.  The tangible result of this panic was DOMA — the misguided "Defense of Marriage Act."  DOMA did two things:

• DOMA specified that if any state legalized marriages between same-sex couples, the federal government wouldn't recognized those marriage for federal purposes.
  
  

  Related: OutCasting youth broadcasters share their comments on this Thomas-Alito statement.  Listen: While it was still in effect, DOMA required same-sex couples to either break up or leave the U.S. in order to stay together.  Listen » Marriage equality program with civil rights lawyer Evan Wolfson, a key architect of the marriage equality movement.  Listen » In-depth exploration of how religious liberty is being used to justify anti-LGBTQ discrimination.  Listen »

 

• This discriminatory law went even further, providing that if any state legalized marriages between same-sex couples, no other state would be required to give legal recognition to those marriages.
  
  This was a gay exception to the general rule that states are generally supposed to give legal effect to the official acts of other states.  This general rule, called comity, is one of the things that makes the United States united.  For example, comity is what allows you to drive across state lines without having to take a new driving test — or to get married in one state and have all of the other states recognize your status as a married couple for legal purposes.

The Supreme Court ruled in two separate cases that each of these DOMA provisions was unconstitutional.

• The landmark 2013 Supreme Court case of U.S. v. Windsor declared that the first provision (denying federal government recognition) violated the constitutional rights of married same-sex couples.  This established the requirement that the federal government must give legal recognition to marriages between same-sex couples for federal purposes.
  
  In a second case, in 2015, the Supreme Court ruled that the constitutional rights of same sex couples were violated when states refused to recognize the valid marriages between same-sex couples who had gotten married in other states that permitted such marriages.  This second landmark case, Obergefell v. Hodges, ended the "gay exception" and made marriage equality the law everywhere in the United States.

Following the Obergefell ruling, a county clerk in Kentucky, Kim Davis, refused to issue marriage licenses to same-sex couples, citing her Christian religious beliefs against same-sex marriage.  The case attracted international attention and notoriety.  A judge ordered her to issue the licenses, and when she continued to refuse, she was jailed for five days.  Subsequently, two same-sex couples sued her.  In the next election, in 2018, Davis, a Republican, lost her job to a Democrat.

Just five years later, on October 5, 2020, the Supreme Court declined Davis’s appeal.  This wasn’t particularly notable — except for an accompanying statement by Justice Clarence Thomas, joined by Justice Samuel Alito, two of the Court’s most conservative members.  The statement focuses on how the Obergefell case, as Thomas and Alito see it, has demonized people who cite religious beliefs in objecting to same-sex marriage.  There is much to object to in the statement.

In the November 2020 edition of OutCasting Overtime, the youth participants of OutCasting, who are LGBTQ and straight allies, reacted.  As a supplement to that reaction, we are posting comments on the statement here.

Our comments are indented and in bold and are inserted into the text in appropriate places.  We have done some reformatting to make this easier to read, including graying out citations to other court cases that may be confusing if you're unfamiliar with legal citation.  In some cases, our comments interrupt paragraphs in the original.  Click here to see the original document [pdf].

 

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Cite as: 592 U. S. ____ (2020)

Statement of THOMAS, J.

SUPREME COURT OF THE UNITED STATES

KIM DAVIS v. DAVID ERMOLD, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 19–926. Decided October 5, 2020

The petition for a writ of certiorari is denied.

Statement of JUSTICE THOMAS, with whom JUSTICE ALITO joins, respecting the denial of certiorari.

In Obergefell v.  Hodges, 576 U.  S.  644 (2015), the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text.

 

It doesn't matter that the right to same-sex marriage isn't in the text of the constitution.  What does matter is the equal protection clause of the constitution.

When states grant straight couples the right to marry, with all the legal benefits that confers, and denies it to gay couples, that denial violates the gay couples’ constitutional right to equal protection of the law — in other words, their right to have the law treat them in the same way it treats others who are similarly situated, unless the state has a valid and important reason for treating them differently.

Some may argue that with respect to marriage, opposite-sex and same-sex couples are not similarly situated, or that there are important reasons for treating them differently.  These arguments are amply addressed in this federal district court opinion.

 

Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. 

 

The legalization of marriage for same-sex couples does not limit the religious liberty of believers.  How does any same-sex marriage affect any opposite-sex marriage?  How does any same-sex marriage prevent people who don’t like it from continuing not to like it?  It doesn’t.

Also, a distinction has to be made between religious marriage and civil (legal) marriage.  The distinction has historically been blurred because states authorize religious leaders to conduct marriages.  But marriages can also be conducted by non-religious people, including judges.  And if the religious marriage is not accompanied by a legal marriage (including the issuance of a marriage certificate by the state), then the religious marriage alone does not make the couple married under the law.  When people are married in church, the minister or priest says the magic words — “By the power vested in me by the State of New York” or whichever state they’re in — and that’s part of the language that creates the legal marriage.

 

 If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs.  Id., at 711 (ROBERTS, C.  J., dissenting); id., at 734 (THOMAS, J., dissenting).  The Court, however, bypassed that democratic process. 

 

Rights like equality should not be subject to the legislative process or left to the states.  Equality before the law is written into the constitution.  We have the constitutional right not to have the law discriminate against us.  If, as Justice Thomas asserts, we should not have challenged the violation of our right to equality in the courts, we have to wonder what significance the constitution or the courts really have in this context.  If Justice Thomas believes that we’re supposed to seek equality only through legislation and not through the courts, then what do constitutional rights like equal protection really mean, and of what use are the courts are in stopping violations of those rights?

 

Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often “decent and honorable,” id., at 672, the Court went on to suggest that those beliefs espoused a bigoted worldview, ibid.  See also id., at 670 (noting that such a view of marriage is “demean[ing]” to gays and lesbians because it “teach[es] that gays and lesbians are unequal”); id., at 671 (describing the view of marriage dictated by the religious beliefs of many as “impos[ing] stigma and injury”); id., at 675 (characterizing the traditional view of marriage as “disrespect[ful]” to gays and lesbians).  The dissenting Justices predicted that “[t]hese .  .  .  assaults on the character of fair-minded people will have an effect, in society and in court,” id., at 712 (opinion of ROBERTS, C.  J.), allowing “governments, employers, and schools” to “vilify” those with these religious beliefs “as bigots,” id., at 741 (opinion of ALITO, J.).  Those predictions did not take long to become reality.

 

As our youth note in the November 2020 OutCasting Overtime piece, religion is a source of comfort and meaning to many, and not all religion is anti-LGBTQ.  Earlier on OutCasting, we spoke with a gay rabbi, Sharon Kleinbaum, the leader of an LGBTQ-welcoming synagogue in New York City.  We also interviewed Bishop Gene Robinson, the first openly gay bishop in the Episcopal Church, whose consecration precipitated a worldwide split in the church over homosexuality.

But for centuries, religion has been used as a tool of brutal oppression and condemnation against LGBTQ people.  Until relatively recently, the law paralleled the religious oppression and condemnation, in essence giving legal effect to the religious oppression and bestowing unearned legal privilege on religions.

• • • Listen to our in-depth exploration of how religion is being used to justify anti-LGBTQ discrimination.
      

But the law has changed in recent decades as more and more people have come to understand the realities of LGBTQ identities, including the fact that we don’t choose to be LGBTQ.  (When religions make a “moral” issue out of LGBTQ identity, there is an inescapable implication that being LGBTQ is a choice — an immoral choice, one that rightly deserves condemnation.  But we know that it’s not a choice, and therefore there is no morality involved.)  Examples of the beneficial changes in the law include marriage equality and the decriminalization of same-sex activity.

Freedom of speech doesn’t guarantee freedom from the consequences of speech.  No one is saying that religious believers can’t hold whatever beliefs they want to.  But when they condemn people for an identity they don’t choose, then yes, it’s correct to call it bigotry.

 

Kim Davis, a former county clerk in the Commonwealth of Kentucky, was responsible for authorizing marriage licenses.  Davis is also a devout Christian.  When she began her tenure as clerk, Davis’ sincerely held religious beliefs—that marriage exists between one man and one woman—corresponded with the definition of marriage under Kentucky law.  See Ky.  Rev.  Stat.  §402.005 (1998); Ky.  Const.§233A (2004).  Within weeks of this Court granting certiorari in Obergefell, Davis began lobbying for amendments toKentucky law that would protect the free exercise rights of those who had religious objections to same-sex marriage.But those efforts were cut short by this Court’s decision in Obergefell.

As a result of this Court’s alteration of the Constitution, Davis found herself faced with a choice between her religious beliefs and her job.  When she chose to follow her faith, and without any statutory protection of her religious beliefs, she was sued almost immediately for violating the constitutional rights of same-sex couples.

 

Freedom of belief is one thing.  Misusing those beliefs to harm others is something else altogether.  Conflating the two is wrong and dangerous, because it enables people with religious beliefs to impose them on others.  The first amendment guarantees not only freedom of religion but also freedom from religion, and that means that the law cannot be used as a tool to impose religious beliefs, or the consequences of those beliefs, on people who don’t hold them.

 

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.  Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in societywithout 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 decidingnot 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.

 

Re: “atextual constitutional rights”: as noted earlier, the ruling in Obergefell did not “find” a constitutional right to same-sex marriage; it found that if the states allowed opposite-sex couples to marry but not same-sex couples, that violated the constitutional guarantee of equality.

Those with religious objections are not “left in the lurch.”  There is nothing requiring them to do jobs that conflict with their religious beliefs.  Kim Davis should have resigned her job as a county clerk if she felt that issuing marriage licenses to same-sex couples — one of the responsibilities of her job — violated her religious beliefs.  She does not have a constitutional right, or any right, to that job.  If she felt that her religious beliefs prevented her from performing doing an integral part of her job, that should have been her problem and she should not have it imposed on same-sex couples.

As Jennifer C. Pizer of Lambda Legal, our guest on OutCasting's series on religious liberty as a tool of anti-LGBTQ discrimination, explains: the government can’t tell people what their religious beliefs should be, but it can prevent them from acting on those beliefs when it harms others.

 

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.  For example, relying on Obergefell, one member of the Sixth Circuit panel in this case described Davis’ sincerely held religious beliefs as “anti-homosexual animus.” 936 F.  3d 429, 438 (2019) (Bush, J., concurring in part and concurring injudgment).  In other words, Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals.  This assessment flows directly from Obergefell’s language, which characterized such views as “disparag[ing]” homosexuals and “diminish[ing] their personhood” through “[d]ignitary wounds.” 576 U.  S., at 672, 678.

 

Again, freedom of speech doesn’t mean freedom from the consequences of your speech.  If people hold beliefs that others find intolerant, there is nothing wrong with calling them intolerant, even if the reasons for the intolerance are religious.

And are Justices Thomas and Alito really saying that religious people’s discomfort with having their speech judged should be given greater weight than the right of same sex couples not to have their right to equality violated?  Calling someone’s speech or beliefs bigoted may be insulting, but it’s not depriving them of anything significant — except that unearned religious privilege, which lets them see themselves as the people with the highest, purest morals.  Depriving same sex couples of the right to marry deprives them of legal equality and denies them important rights.

 

Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy.  See Campaign for Southern Equality v.  Bryant, 197
F.  Supp.  3d 905, 910 (SD Miss.  2016) (recognizing the plaintiffs’ argument equating an accommodation allowing religious objectors to recuse themselves from signing same-sex licenses with impermissible discrimination); Brush & Nib Studio, LC v.  Phoenix, 244 Ariz.  59, 66, 418 P.  3d 426, 434 (2018) (describing owners of wedding studio who declined to participate in same-sex weddings for religious reasons as treating homosexuals like “‘social outcasts’” (quoting Masterpiece Cakeshop, Ltd.  v.  Colorado Civil Rights Comm’n, 584 U.  S.  ___, ___ (2018) (slip op., at 9))).

* * *

This petition implicates important questions about thescope of our decision in Obergefell, but it does not cleanl ypresent them.  For that reason, I concur in the denial of certiorari.  Nevertheless, this petition provides a stark reminder of the consequences of Obergefell.  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.” 576 U.  S., at 734 (THOMAS, J., dissenting).

 

We are not labeling people as bigots merely for refusing to alter their religious beliefs.  They can believe whatever they want.  But when they try to turn those religious beliefs into actions against LGBTQ people to deny us aspects of our equality based on who we are, based on aspects of our identity that we did not choose and cannot change, then perhaps they can no longer really be considered people of good will, and it’s not wrong to call them bigots.  If they don’t like that, they should stop trying to inject their religious homophobia into the law, which governs all of us.

 

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FN1.   Under this Court’s precedents, “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion proscribes (or prescribes).” Employment Div., Dept.  of Human Resources of Ore.  v.  Smith, 494 U.  S.  872, 879 (1990) (internal quotation marks omitted).  As a result of Smith, accommodations for those with sincerely held religious beliefs have generally been viewed as the domain of positive state and federal law.  See, e.g., Klein v.  Oregon Bureau of Labor & Industries, 289 Ore.  App.  507, 543– 546, 410 P.  3d 1051, 1074–1076 (2017) (rejecting a Free Exercise claim under Smith).