A More Conservative Court’s Meaning for Gay Marriage

By Vincent Cahill

Amidst renewed inflammation of Covid-19 cases, the election of a new president (and all the controversy that accompanied it) along with continuing displays of civil unrest across the country, the United States has had little time for respite in the final months of 2020. With some fresh obstacle or occurrence seemingly bursting into the headlines each day, many events that in past years would have dominated the news cycle have been pushed into the obscure and proverbial closet of Americans’ minds; one such event came on the heels of the appointment of the latest brand-new Supreme Court Justice Amy Coney Barrett.  

Preceding the breakneck speed of the conservative Barrett’s appointment and Senate approval on October 26th, Justice Clarance Thomas wrote a statement concerning the case of Kim Davis v. David Ermold on October 5th. Justice Thomas denied the case’s Writ of Certiorari, which essentially means he stated that he didn’t believe the Supreme Court should hear the case. Still, the 4-page statement’s1 real intrigue had to do not with the legal troubles of Kim Davis but rather concerning the Court’s 2015 ruling in Obergefell v. Hodges2.  

Briefly, Obergefell v. Hodges is the famous (or infamous depending on your perspective) case that legalized gay marriage and granted same-sex marriages the same legal protections and privileges as traditional marriages. Kim Davis was a County Clerk in Kentucky who refused to issue same-sex marriage licenses despite their legality, citing her religious beliefs as justification for her refusal; she has since become a controversial figure, to say the least, being at the same time denounced on the left as a homophobic bigot and lauded as a champion of faith on the right. 

While the Supreme Court’s refusal to hear her case has essentially retired Kim Davis from the spotlight, the discussion surrounding the legality of gay marriage appears as though it may be due for an encore.  

The main argumentative thrust of the statement as it pertains to Obergefell v. Hodges appears to be that it was not the place of the Supreme Court to make a decision that, in Justice Thomas’ view, put the first amendment’s protection of religious freedom at odds with the “prevailing orthodoxy” and “atextual constitutional right” of homosexual marriage. The statement specifically, and somewhat cheekily, mentions that if gay marriage had been adopted through state legislatures, it would not be a problem for the people to decide “not to provide statutory protections for religious liberty under state law.”

However, I can’t help but call bullshit on this. Throughout the statement, Justice Thomas so clearly and undeniably disregards the context of the case made against Kim Davis and mischaracterizes Obergefell v. Hodges’ majority opinion to cast Davis as a victim.  

Justice Thomas’s real main problem, at least from the subtext of this statement, seems not actually to be the legality of gay marriage, but rather the rhetoric used to describe those who use religion as their grounds for opposing it. What I mean by this is that throughout Justice Thomas’s statement, the fact that Kim Davis became a county clerk before legal marriage was nationally legalized, perhaps one of the strongest legal justifications of her actions, was only mentioned once. In contrast, the characterization of devout religious adherents is mentioned repeatedly throughout the statement. 

The more emotional and personal assessment in his rebuke of these religious adherents’ criticism strikes me as more political than legal. The unique nature of Kim Davis’ case, as an elected official whose job could not be bypassed by those wishing to get married in her county, distinguishes her further from some of the other cases referenced in this statement, such as Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission which dealt with a private business refusing to bake a cake for a gay wedding.

The fairly obvious nature of the legal distinction leads me further towards the conclusion that Justice Thomas’ issue isn’t legality, but what could perhaps more accurately be described as indignation at the sort of derogatory language used in the Obergefell v. Hodges majority opinion.  

While it’s true the Obergefell v. Hodges majority opinion does harshly characterize laws that restricted same-sex marriage as disrespectful and guilty of encouraging a draconian and outdated view of the world, Justice Thomas seems to have extrapolated these criticisms to be of every religious individual. Having read the opinion, I can say with certitude that individuals are never explicitly targeted. However, it is easy to see how someone religious could feel uncomfortable while reading it.

If we’ve learned anything from the racially charged civil unrest this past year, it’s that prior injustices are not easy to admit or address, and the 28-page long majority opinion in Obergefell v. Hodges serves as a detailed record of the sort of indignity that same-sex couples have been subjected to. As a Catholic himself, I think Justice Thomas took these sorts of rebukes personally, which in my opinion is both a good thing and a bad thing. 

While, of course, I don’t believe statements coming out of the Supreme Court against an issue like gay marriage, that I find so objectively in favor of the greater good, are positive. The lack of genuine legal weight behind the claim that same-sex marriage is at odds with first-amendment religious rights helps me sleep at night knowing that the court’s decision, in a case like Obergefell v. Hodges, has little chance of being overturned despite the conservative restructuring that has taken place since 2015. 

About the Author

Vince is an undergraduate senior at Marquette University, majoring in political science with a specialization in law and politics. He became involved in BridgeUSA after realizing the lack of crossover on his school’s campus among political views both in the classroom and in general.