The Supreme Court today rejected the appeal of a clerk in Tennessee who refused to issue marriage licenses to couples of the same sex on religious grounds, but a dissenting opinion from two of the court’s most conservative justices cast doubt for the future of LGBTQ+ rights and marriage equality. The court denied the request of Kim Davis to quash a lawsuit against her after she defied the court order to issue marriage licenses to couples of the same sex, but Associate Justices Clarence Thomas and Samuel Alito claimed that court, in effect, created the right to marriage equality in the 14th amendment and in doing so violated Davis' religious beliefs by forcing her to issue the licenses.
In their dissenting opinion, which is unusual for a case rejected by the court, Thomas and Alito declared “it would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process” allowing the people to decide whether to “provide statutory protections for religious liberty under state law” but that it is improper for the court to force that “choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.”
The dissent went on to say the court’s original ruling in Obergefell v. Hodges, which is where marriage equality was passed, created a “novel constitutional right over the religious liberty interests explicitly protected in the First Amendment” and that it enabled the government and courts 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 essence, they maintain that marriage equality is in opposition to the First Amendment.
"The Court has created a problem that only it can fix," Thomas wrote in his opinion. "until then, Obergefell will continue to have 'ruinous consequences for religious liberty.'"
The case began when Davis, an employee of the Rowan County clerk’s office refused to issue marriage licenses to couples David Ermold and David Moore, and James Yates and Will Smith. The couples were rejected three times when they requested marriage licenses from Davis in 2015, who was an employee of the clerk’s office. She was subsequently fired by the county and sued by the two couples. Davis claimed she was protected by qualified immunity from any lawsuits for her refusal to abide by the law and court decision. A federal appeals court rejected her claims in a 3-0 decision.
Today’s ruling by the court means the couple’s civil case against Davis can proceed, but the dissenting opinion of the two conservative associate justices is a major cause for concern as the Senate is likely to confirm another conservative judge who would likely also be in favor of overturning marriage equality.