Why the right wing has put marriage equality and LGBTQ rights on the ballot

Same-sex marriage advocates expressed concern Monday after rightwing Supreme Court Justices Clarence Thomas and Samuel Alito issued a fresh attack on a landmark 2015 decision that had been hailed as a "transformative triumph'" for marriage equality and LGBTQ rights.

The attack came when the top court declined to hear an appeal from Kim Davis, a former county clerk in the Kentucky whorefused, after the Obergefell v. Hodges et. al. decision, to issue same-sex marriage certificates citing her religious beliefs.

In a statement (pdf) accompanying the denial of Davis's appeal, written by Thomas and joined by Alito, the justices say "Davis may have been one of the first victims of this court's cavalier treatment of religion in its Obergefell decision, but she will not be the last."

The "petition provides a stark reminder of the consequences of Obergefell," they added.

"By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment," Thomas and Alito wrote, "the court has created a problem that only it can fix. Until then, Obergefell will continue to have 'ruinous consequences for religious liberty.'"

The opinion drew sharp rebuke from James Esseks, director of the American Civil Liberties Union LGBT and HIV Project.

"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," said Esseks.

"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. Our government could not function if everyone doing the government's business got to pick their own rules," Esseks said.

Attorney and trans rights activist Chase Strangio warned the comments from Alito and Thomas could signal a broad attack on the LGBTQ community.

"The attack on marriage equality will be part of a larger wave that also includes the criminalization of trans healthcare, the formulation of a constitutional right for cis people not to share space with trans people, the attack on our very existence," said Strangio, adding, "We must fight."

According to Tim Holbrook, a professor at Emory University School of Law, the choice of words in the opinion by Thomas and Alito sends "a signal to state legislatures to challenge Obergefell, at least on religious liberty grounds."

In his op-ed at CNN, Holbrook warned, "Such efforts could be successful," and continued:

Does this mean marriage equality will be overruled? It may not. Instead, the justices, with Justice Thomas's and Alito's statement as a preview, may carve out sweeping religious liberty exceptions to marriage equality. The court may also chip away at attendant rights, like adoption and allowing same-sex couples to be named as parents on birth certificates. It also would be problematic, if not impossible, for the court to eliminate existing marriages between same-sex couples. That may stay the court's hand to some extent.

"Nevertheless," added Holbrook, "marriage equality may be at risk."

Amplifying concerns is the fact that the Republican-controlled Senate is set to move " full steam ahead"—Capitol Hill Covid-19 infections be damned—with confirmation hearings next week for Judge Amy Coney Barrett, whom progressive activists say poses a threat to healthcare, reproductive justice, and LGBTQ rights.

"Amy Coney Barrett has openly claimed to hold similar views to [late Supreme Court Justice Antonin] Scalia, who Thomas and Alito channel with this opinion," HRC president Alphonso David said in a statement Monday.

"That fact, along with Barrett's ties to anti-equality extremist groups who aim to criminalize LGBTQ relationships in the United States and abroad," said David, "shows that Barrett will only embolden these anti-equality extremist views on the court."