Two conservative justices proved this week that they're prepared to chip away at the landmark ruling.
On Monday, the Supreme Court declined to take up the case of Kim Davis, the Rowan County, Kentucky, clerk who refused to issue marriage certificates to same-sex couples even after Obergefell v. Hodges made it legal in 2015.
Two justices — Samuel Alito and Clarence Thomas — used that denial to write a statement explaining just how much they’d like to see Obergefell overturned, even if the Davis case wasn't the one to make that happen.
Given her past public comments, if Trump's Supreme Court nominee Amy Coney Barrett joins the court, she's very likely to agree, joining Thomas in using “religious liberty” to dismantle LGBTQ rights bit by bit.
Davis claimed her religious beliefs rendered her unable to issue same-sex marriage certificates and that she was therefore immune from a lawsuit by same-sex couples. The U.S. Court of Appeals for the 6th Circuit rejected that, leaving Davis to hope the Supreme Court would hear her case.
Although he agreed with the decision not to hear the case, Thomas's statement this week, which Alito joined, shows he would welcome future cases by people asserting their religious liberty is violated if they have to treat same-sex couples equally under the law.
Thomas claimed in his statement that Davis "may have been one of the first victims of this Court's cavalier treatment of religion." He was also unhappy that people who rely on their religious views to oppose same-sex marriage may be seen as bigots, instead calling them "people of good will."
Thomas also wrote that the Obergefell decision placed the right of same-sex marriage over "religious liberty" interests and that the case would continue to have "ruinous consequences for religious liberty."
It's notable that Thomas sees merely being labeled as bigots as a burden conservative Christians should not have to bear — a very expansive view of religious liberty.
More importantly, Thomas seems to be trying to chart a course for the court to use religious liberty to undermine LGBTQ rights. If someone says that providing a service — such as the issuance of marriage licenses or baking a cake — to same-sex couples violates their religious beliefs, Thomas would let that stand. It doesn't make same-sex marriage illegal. It just makes it harder to obtain the rights and privileges that come with same-sex marriage.
This is a well-worn path when it comes to abortion. Over the last 30 years, the Supreme Court has chipped away at abortion rights, slowly but surely. In 1992's Planned Parenthood v. Casey, the court created a new, lower standard than what had been put forth in Roe v. Wade and declared abortion restrictions permissible if they didn't cause an "undue burden" rather than fully protecting the right to choose. Fifteen years later, in Gonzalez v. Carhart, the court used that lower "undue burden" standard to uphold a so-called "partial-birth abortion ban" that barred a variation of a common second-trimester abortion procedure.
Legislatures have used this lower standard to pass law after law restricting abortion rights. Chief Justice Roberts has indicated he's fine with a wide variety of them, including the imposition of waiting periods, mandatory parental consent, and forced counseling. Abortion access decreases each time one of these laws succeeds.
This is exactly what could happen with same-sex marriage and other LGBTQ rights. Alito raised the specter of religious liberty the last time LGBTQ people made a significant gain. When a majority of the court held that someone couldn't be fired simply for being LGBTQ, Alito worried about the fact that some employers have "strong religious objections to sex reassignment procedures" and that requiring employers to cover this in a healthcare plan "will have a severe impact on their ability to honor their deeply held religious beliefs."
Barrett has already made clear she thinks religious liberty trumps other rights. She signed a 2012 letter by the Becket Fund that argued businesses have their religious liberty violated if they have to fill out a form shifting the cost of covering birth control from the business to the insurer.
She's also made clear she doesn't believe LGBTQ people deserve full rights. In 2006, she signed a full-page advertisement that has received the most attention for its anti-choice language. However, that letter didn't just talk about reproductive health. There was also language, with which Barrett agreed, that affirmed the Catholic Church's teachings on "the meaning of human sexuality, the significance of sexual difference and the complementarity of men and women [...] and on marriage and family founded on the indissoluble commitment of a man and a woman."
That barely-coded language shows she opposes same-sex marriage and trans people, and that her opposition is based on religious beliefs.
During Barrett's 2017 confirmation hearing, then-Sen. Al Franken (D-MN) questioned her about her paid speeches to the Blackstone Legal Fellowship. Blackstone is affiliated with the Alliance Defending Freedom (ADF), an extremely anti-gay law firm that represented a florist who refused service to a same-sex couple and a baker who didn't want to bake a cake for a same-sex couple.
During those hearings, Barrett insisted she was unaware of Blackstone's affiliation with ADF, nor did she know that ADF had a lengthy history of filing lawsuits that used claims of religious liberty to restrict others' rights.
On its face, that seems absurd, given that ADF has been either the attorney of record or filed amicus briefs in major Supreme Court religious liberty cases spanning the last two decades.
Barrett is cagey about her views on both reproductive health and LGBTQ rights, but her past writings and past affiliations indicate that she may value her religious beliefs more than she values the law.
Along with Justices Alito and Thomas, Barrett is likely to be very comfortable imposing a narrow view of religious freedom, which puts Christian conservatives' views over all others.
Published with permission of The American Independent Foundation.