The Story: Justices Thomas and Alito warn about the threat to religious liberty in the decision that cleared way for same-sex marriage. Could a conservative majority on the Supreme Court be on the verge of overturning that ruling?
The Background: On the first day of the Supreme Court’s new term, Justice Thomas wrote a scathing critique of Obergefell v. Hodges. In that 2015 case, the court ruled the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Thomas was prompted by an appeal by Kim Davis, the county clerk in Rowan County, Kentucky, who went to jail for refusing to issue marriage licenses to same-sex couples because of her religious objections.
Thomas and the other justices declined to hear the appeal because her case was not properly presented before the court. But Thomas, in a statement joined by Justice Alito, said Davis may have been “one of the first victims” of the court’s “cavalier treatment of religion” in the Obergefell decision, and warned “she will not be the last.” He also notes that a federal appeals court relied on Obergefell when describing Davis’s sincerely held religious beliefs as “anti-homosexual animus.”
“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,” Thomas wrote. “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.’”
“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,” he added.
What It Means: Could the Supreme Court overturn the ruling that forced same-sex marriage on all 50 states? It’s possible, though currently unlikely. Even with a “conservative” majority the conservative position might not have a majority support.
Justices Thomas and Alito have signaled they would overturn the five-year-old decision. Justice Kavanaugh might also be swayed, as would Amy Coney Barrett if she makes it onto the court. But that would still require one additional vote, either from Justice Gorsuch or Chief Justice Roberts.
Five years ago Roberts wrote a scathing rebuke in his dissenting opinion on Obergefell. “The majority’s decision is an act of will, not legal judgment,” Roberts wrote. “The right it announces has no basis in the Constitution or this Court’s precedent.” Yet despite finding no legal basis for mandating same-sex marriage, the chief justice is likely to treat Obergefell as a binding precedent. Roberts has shown an aversion to overturning precedents, including recent precedents established while he was on the court. Last year he cast the key fifth vote to strike down a Louisiana anti-abortion law. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts wrotes.
Justice Gorsuch is also unlikely to rule against Obergefell. In June, Gorsuch joined Roberts and the four liberal justices in a court ruling that the term “sex” covers gender identity and sexual orientation. Justice Gorsuch even wrote the majority’s opinion.
CNN notes, “Supporters of LGBTQ rights are fearful that the court is poised to continue a trend from last term, ruling in favor of religious conservatives in key cases.” But that isn’t likely to happen any time soon. Even with Barrett on the court, there would not be enough obvious votes to overturn Obergefell (and likely not enough to overturn Roe).
When Obergefell was decided in 2015, LGBT advocates and their allies claimed there would be millions of same-sex marriages. But five years later we are seeing that there never was significant demand for homosexual marriage.
According to the Census data, an estimated 266,584,552 Americans are currently married. The number of opposite-sex married couples is 57,802,732 (or 115,605,464 married individuals) and the number of same-sex couples is 568,110 (or 1,136,220 married individuals)
In 2019, the number of American of marital age is 267,720,772, with an estimated 12 million (4.5 percent of the population) who identify as LGBT. This means only about 9 percent of homosexuals are married to someone of the same sex, compared to 43 percent of heterosexuals.
As I wrote in 2015, “For more than a decade both same-sex marriage activists and social conservatives have claimed that the LGBT community has little interest in monogamous, traditional forms of marriage and that the goal was merely to normalize homosexual relationships. Both groups were ignored or shouted down, yet the marriage statistics show they were right all along.”* Yet the court will likely continue to uphold an unjust ruling that proves to be a significant threat to religious liberty. In his statement, Justice Thomas concludes:
[T]his 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.”
*In that article I also claimed, “And no one I’ve seen who has thoroughly examined the statistics predicts the number of same-sex marriages will reach 500,000 over the next decade, much less 1 million to 2 million in the next few years.” While I accurately predicted it would not be in the the millions, I was wrong about the number of same-sex marriages we could expect in a decade.