Supreme Court Justices Clarence Thomas and Samuel A. Alito Jr. appeared to suggest that the court should reconsider the landmark Obergefell v. Hodges decision that made same-sex marriage a constitutional right because it threatens the religious liberty of Americans who believe “marriage is a sacred institution between one man and one woman.”
The justices made the argument in an opinion issued Monday in which the court refused to hear an appeal from former Kentucky county clerk Kim Davis who is being sued for refusing to issue marriage licenses to same-sex couples because of her sincerely held Christian beliefs. Davis, who is a devout Pentecostal Christian, was briefly jailed for her actions.
“This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari,” Thomas wrote in a statement on the case joined by Alito.
Despite denying Davis’ appeal, Thomas argued it “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.”
The Supreme Court ruled 5-4 in the Obergefell v. Hodges case in June 2015 that state-level same-sex marriage bans are unconstitutional, and concluded that the 14th Amendment requires states to issue marriage licenses to same-sex couples.
Chief Justice John G. Roberts Jr., Justice Antonin Scalia, who died in 2016, Thomas and Alito, were the four dissenters.