Supreme Court justices Clarence Thomas and Samuel Alito have launched an extraordinary attack on the ruling that led to equal marriage, claiming that people who discriminate against gay couples are âvictimsâ of the law.
On Monday (October 5), the two justices penned aÂ statementÂ as the court declined to considerÂ a case brought byÂ Kim Davis, the Kentucky clerk who refused to carry out her job processing marriage licenses when gay couples were permitted to wed in 2015.
Davis, who has been married four times to three husbands,Â became a cause celebre among anti-LGBT+ evangelicalsÂ when she claimed she was unable to marry same-sex couples because of her Christian values.
Although Thomas and Alito affirmed the courtâs decision not to hear the Davis case on procedural grounds, in the statement they launched an extraordinary broadside on theÂ 2015Â ObergefellÂ rulingÂ that legalised same-sex marriage across all 50 states.
Supreme Court justices Clarence Thomas and Samuel Alito say Kim Davis was âa victimâ of equal marriage
The pair lauded Davis as âa devout Christianâ with âsincerely held religious beliefs,â lamenting that âas a result of this courtâs alteration of the constitution, Davis found herself faced with a choice between her religious beliefs and her jobâ.
Thomas and Alito, who were among the dissenters against marriage equality when the court split five to four on the issue in 2015, continued: âDavis may have been one of the first victims of this courtâs cavalier treatment of religion in its Obergefell decision, but she will not be the last.
âDue to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws.
âIt would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law.
âBut it is quite another when the court forces 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.â
The pair continued: âThis petition provides a stark reminder of the consequences of Obergefell. 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.
âUntil then, Obergefell will continue to have ruinous consequences for religious liberty.â
Civil rights activists fear courtâs conservatives will seek to undermine pro-LGBT+ rulings
While the attack is largely symbolic, the intervention will only stoke fears that conservatives on the court, who would be emboldened with a six to three majority ifÂ Donald Trumpâs latest nominee Amy Coney Barrett is confirmed by the Senate, could drastically undermine LGBT+ equality in a future case.
On November 4, just one day after the US election, the court isÂ setÂ to hear arguments surrounding Catholic Social Services (CSS), a Philadelphia-based adoption and foster care agency that insists it should be allowed to turn away same-sex couples and still receive taxpayer funding.
The case has causedÂ jittersÂ among LGBT+ rights advocates, as even recent victories on LGBT+ discrimination protectionsÂ came with explicit warningsÂ that civil rights laws could be overridden by religious freedom concerns.
Several other âfreedom to discriminateâ casesÂ are working through the lower courts, many brought with the support of anti-LGBT+ hate groups who haveÂ long set their sightsÂ on attempting to carve out a specific protection for discrimination against LGBT+ people under the First Amendmentâs protections for religious freedom.
Chase Strangio of the ACLUÂ explained in a Twitter threadÂ that the statement suggests the justices âare eager to overturn Obergefell already â even though it is only five years old.â
He added: âThe brazenness of the rightward direction of the court is a threat to even the most basic expectation of legal protection. What we can expect is the continued erosion of legal protections gained over the past century. â
The Alliance for Justice agreed the intervention is âextremely concerning.â The group added: âMarriage equality, or any force it might carry, is 100 per cent threatened by Amy Coney Barrettâs nomination. The courtâs conservatives are clearly chomping at the bit to chip away at it.â
LGBT+ civil rights firm Lambda Legal said: âRepublicans and the Supreme Court are gleefully coming for marriage equality, and they think that Trumpâs SCOTUS nominee Amy Coney Barrett gives them the opportunity to do it.â