If you think same-sex marriage isn’t in danger of being overturned, Justice Clarence Thomas would like you to think again.
Thomas, joined by Justice Samuel Alito, today published a blistering attack on the Supreme Court’s landmark case of Obergefell v. Hodges, which struck down state bans on same-sex marriage in 2015, arguing that it should be overturned.
Thomas’s opinion is not a court decision and has no legal impact. My husband and I are still legally married, and our daughter has not yet been taken away from us. But Thomas’s screed is a terrifying warning for the millions of LGBTQ Americans who have built families together in the wake of Obergefell, and a reminder that we are not nearly as secure in our rights as many of us thought. Especially when you count up the justices likely to agree with Thomas.
Ironically, the context for Thomas’s opinion is a small victory for gay people: The Supreme Court refused to take up a challenge by Kim Davis (yes, that Kim Davis, the Kentucky clerk who refused to certify any marriages after the Obergefell decision, and who has since become a well-paid poster child for the “religious freedom” movement) arguing that she should be immune from a civil lawsuit brought by two of the couples she refused to marry. Davis lost at the district court, lost again at the appeals court, and today, the Supreme Court refused to take her case.
Justice Thomas, while agreeing with the denial of review because the case was narrowly about immunity, took the occasion to opine about how Obergefell “threaten[ed] the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman.”
Worse, Thomas complained, “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.”
In sum, concluded Thomas, quoting Chief Justice John Roberts’ dissent in the case, “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.’”
To be sure, Thomas’s opinion is hardly surprising; he dissented in Obergefell, writing separately to note that gay people can’t have their dignity harmed by marriage bans because “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.”
And Thomas has a long record of authoring quixotic concurring and dissenting opinions that seem to come from another jurisprudential planet. He has questioned the “reasonable expectation of privacy,” the cornerstone of Fourth Amendment interpretation, as well as the constitutionality of Social Security, campaign finance laws, any use of race to make any decision whatsoever, and even the application of the First Amendment to states (meaning that states could establish official religions).
What’s troubling about Thomas’s concurrence today, though, is that it’s not another weird Thomas opinion but–like other of his once-outlier opinions–may well represent a roadmap for the “Trump Court” to overturn not just same-sex marriage but also numerous other rights, under the guise of protecting religious freedom. (Last year, he provided a similar roadmap to overturning Roe v. Wade.)
Indeed, Thomas’s opinion reads like a primer on the redefinition of “religious freedom” that has flourished in the last ten years and has now become Republican party orthodoxy. (I first wrote about it in 2013.)
First, notice the inversion of victim and oppressor. In Thomas’s opinion, the victims are not the gay couples turned away by Kim Davis–the victim is Kim Davis. Never mind that implicit (or explicit) “No Gays Allowed” sign; in this logic, the real victim is the person who wants to turn the gays away, but can’t.
Second, notice the elision of real religious freedom cases, which are between the believer and the government, and these “religious freedom” cases, which are between a person who wishes to discriminate, and people who are the victims of discrimination.
For over one hundred years, religious freedom meant protecting people from government persecution: a Muslim prison inmate forbidden from growing a beard, a Native American who lost his job because he ingested peyote in a religious ritual, students forced to say sectarian prayers in public school. In those classic cases, there were no third parties whose rights were abridged by someone else’s religious practice.
In fact, the first time “religious freedom” was said to include my right to discriminate against you because of my religious belief, the people arguing it were segregationists. My faith requires me to separate blacks and whites at my restaurant, they said–and they were roundly rejected.
Religious freedom never meant freedom at someone else’s expense.
Until 2014, that is, when the Supreme Court held that Hobby Lobby, a corporation owned by a single family (who just happen to be major donors to the Religious Right), had a religious exemption to Obamacare, and could deny female employees insurance coverage for contraception.
Thomas’s opinion follows the same script but takes it a step further, saying the right to discriminate is among “the religious liberty interests explicitly protected in the First Amendment.”
Really? I don’t see discrimination against third parties “explicitly” in the text. And last I checked, I don’t get to hide behind “religious freedom” if I shoot someone, or deny them service at my restaurant because of their race, or shout fire in the proverbial crowded theater.
Finally, Thomas’s opinion is troubling because, judging from their past writings, Justice Neil Gorsuch, Chief Justice John Roberts, and Future Justice Amy Coney Barrett appear to agree with it. Add in Justice Alito, who concurred today, and you’ve got five justices saying that my marriage interferes with someone else’s religious freedom because they don’t want to recognize that it exists.
Still think gay marriage is safe, settled, and beyond today’s political disputes? Wrong. It’s none of the above.