October 5, 2020 is the day Clarence Thomas, joined by Samuel Alito, showed those against the Court’s decision in Obergefell a way to have the Justices overturn same-sex marriage and the recognition of same-sex marriages.
Thomas authored a dissent to the Court’s denial of certiorari of the Kim Davis case. As you may recall, Davis was a County Clerk of Rowan County, Kentucky who refused to issue marriage licenses to same-sex couples due to her religious beliefs. Her position as County Clerk required her to issue the marriage licenses. She did not have to perform marriages, but her name would be on the license as the issuer for the County. Kentucky eventually removed the clerk names from the marriage licenses.
But Thomas’ dissent has nothing to do with Davis or her case, it has everything to do with putting religion over secular civil rights and says what kind of case to bring to them if Obergefell is to be overturned.
Thomas claims that same-sex marriage is a right that is an “atextual constitutional right” that the Court read into the Fourteenth Amendment. Like many rights that have been granted by the Fourteenth Amendment, he is right, it is not specifically enumerated, but that does not mean that the right is not there. The government shall not treat similarly situated people differently. Our relationships are just as valid as anyone’s relationship. Not less, equal. The Fourteenth Amendment has provided many rights and privileges we enjoy today and not one of those rights is actually written in the Amendment.
As for religion, Thomas is also correct in stating that no religious exceptions or exemptions are in the Obergefell decision. These religious protections are housed in the Religious Freedom Restoration Act of 1993 (RFRA) and those of the respective states. He can say that the Obergefell decision labels those individuals who are religiously opposed to same-sex marriage as bigots, but that is not the truth. They can still believe marriage is a heterosexual institution, sanctioned by the state. Nothing in the decision forces them to change their beliefs and their beliefs are protected by the First Amendment, RFRA, and the RFRA of the states. What it does not allow is the state to discriminate against our community, as Davis was doing in her official capacity as County Clerk.
In the last paragraph, Thomas agrees with the denial because it “does not cleanly present” the important questions that he has about the scope of Obergefell. Thomas claims Obergefell overrides religious liberty. In saying that the Davis case is not cleanly presenting the issues he has, Thomas is signaling to those who have fought against our equality to bring the Court a case where they can rule that a religious objection to same-sex marriage is a greater right than the right to same-sex marriage. Interestingly, in the footnotes, Thomas added that the right to free exercise of religion is not relieved if the law is valid and neutrally applicable. I cannot see how allowing civil same-sex marriage is an infringement on the right to free exercise of religion but I am sure we will soon see a case.
The Obergefell decision in 2015 expanded the definition of “We the people”. Our community was elevated to the same status as heterosexual couples. It was a “win” that we fought for, bled for, and celebrated on that glorious June day. I remember where I was when I heard a decision was imminent. I turned on the television to watch the celebration begin. We have fought for so long to be equal and gained our civil rights bit by bit through the Court and changing attitudes.
I fervently request that everyone vote and make your voice heard. Fight back against any and all homophobia. And be ready, Obergefell is not the only case that the Religious Right would like to overturn. Look for Lawrence, Windsor, Casey, Roe, and Griswold to be on the table with an almost certain 6-3 conservative majority.
I would also remind Thomas that his marriage is legal because of Loving which was a right “found” in the Fourteenth Amendment.
Rachel Anderson, Esq. is an Attorney at Chesapeake Legal Group, PLLC and Board Member of HRBOR who specializes in estate planning and administration, business law, and contracts. Ms. Anderson represents clients throughout Hampton Roads and can be reached at Rachel@chesapeakelegalgroup.com or 757-410-7943.