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Two SCOTUS justices claim the 2015 marriage equality decision bypassed the democratic process

They said the court had "bypassed the democratic process" in making the decision and left those with religious objections to same-sex marriage "in the lurch."

Two SCOTUS justices claim the 2015 marriage equality decision bypassed the democratic process
Cover Image Source: Supporters of same-sex marriage unfurl a large rainbow pride flag near the Supreme Court, April 28, 2015 in Washington, DC. (Drew Angerer/Getty Images)

Less than a month after the death of Justice Ruth Bader Ginsburg, LGBTQIA+ campaigners, and legal experts have reason to worry about the 2015 Obergefell v. Hodges decision which legalized marriage equality in all 50 states. The cause for their concern stems from an alarming opinion issued by two Supreme Court justices Monday which claimed the landmark decision has and will continue to have "ruinous consequences for religious liberty." According to The Guardian, it came as the court declined to hear an appeal in the case of former Kentucky clerk Kim Davis, who in 2015, repeatedly refused to issue marriage certificates to same-gender couples and was subsequently jailed.



 

Despite the Court's decision to deny her appeal, justices Clarence Thomas and Samuel Alito — who dissented from the 5-4 marriage ruling in 2015 — issued an "appalling" attack on the landmark decision. Although they said they agreed with the decision not to hear the case, the justices said it was a "stark reminder of the consequences" of the Obergefell v Hodges decision and that Davis "may have been one of the first victims of this court's cavalier treatment of religion in" the same. "She will not be the last," they warned.



 

"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," wrote Thomas, joined by Justice Alito. "Until then, Obergefell will continue to have 'ruinous consequences for religious liberty.'" They said the court had "bypassed the democratic process" in making the decision and left those with religious objections to same-sex marriage "in the lurch." Thomas and Alito, who are two of five conservatives on the nine-member court, also argued that 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."



 

James Esseks, director of the American Civil Liberties Union (ACLU) LGBT and HIV Project denounced the justices' comments and said that "it is appalling that five years after the historic decision in Obergefell, two justices still consider same-sex couples less worthy of marriage than other couples." He added: "When you do a job on behalf of the government – as an employee or a contractor – there is no license to discriminate or turn people away because they do not meet religious criteria. We will fight against any attempts to open the door to legalized discrimination against LGBTQ people."



 

Although Esseks said that justices' worrisome opinion merely provides "a preview of what some justices' views are" and may not lead to the overturning of Obergefell because "the freedom to marry has become part of American culture," he did have a few concerns. "What I'm worried they're going to say is 'Well, fine, we'll give you the marriage license and you can call yourself married, but we're not going to treat your marriage the same way we treat other people's marriages.' The concern is that they're going to use religious liberty as an excuse for licensing discrimination," he said.



 

Meanwhile, Preston Mitchum — policy director at Urge: Unite for Reproductive and Gender Equity — said that targeting Obergefell could impact more than same-sex marriage. "It will impact every single thing. Resources of courts will be redirected to maintain status quo. We know the more right[wing] the court gets, the less likely they are to rule in favor of marginalized communities... It's more than marriage because it connects so many pieces of our lives," he said. Former Democratic presidential candidate Pete Buttigieg, who was the first openly gay presidential candidate, also voiced his concerns over Thomas and Alito's opinion, tweeting: "So much for precedent and judicial restraint. Two justices now openly call for an end to marriage equality—knowing reinforcements are on the way. The stakes could not be higher."

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