The US Supreme Court has already signalled it’s willingness to move back on a 2015 landmark decision to legalize same-sex marriage, which will be put to the test by major cases it will be hearing in November.
The issue of same sex marriage, long thought decided by most Americans, was again thrust into the mainstream spotlight on Monday, October 5th when Supreme Court Justice Clarence Thomas and Samuel Alito issued a strong statement against their landmark 2015 ruling legalizing same sex marriage. after they refused to hear a case brought by a county clerk in Kentucky who had declined to issue a marriage license for gay couples.
While previously they had declined to hear other cases, and stood by those decisions, they blasted their landmark Obergefell v. Hodges ruling that granted same-sex couples the right to marriage with a 5-4 ruling which used 14th Amendment to grant equal protection of the law, a view they felt conflicted with the first amendment right to freedom of religion and speech.
Thomas wrote as a joint statement that Obergefell v. Hodges
“enables courts and governments 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.”
He followed by adding:
“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,” they said. “Until then, Obergefell will continue to have ruinous consequences for religious liberty.”
This is especially disturbing for many in Cascadia, who has long led the fight for Gay Marriage. British Columbia legalized same-sex marriage on July 8th 2003, becoming the second jurisdiction in North America (and fourth worldwide) to do so. Washington State followed suit on February 13, 2012, when governor Christine Gregoire signed legislation that established full marriage rights for same-sex couples and finally went through on November 6th after voters approved it through referendum. Within a couple of days, more than 600 same-sex marriage licenses were issued in King County alone. While Oregon was slower to adopt full legalization of marriage, domestic partnerships for same-sex couples have been available since February 4, 2008, and benefits to same-sex partners of state employees since 1998.
The timing of this proclamation by Thomas and Alito is especially disturbing as the United States explores confirmation hearings conservative judge Amy Coney Barrett, after the passing of staunch liberal judge Ruth Bader Ginsberg. While Brett Kavanaugh, Neil Gorsuch and Chief Justice John Roberts, who also dissented in 2015 with Scalia, Alito and Thomas, did not sign the letter, nominee Amy Coney Barrett has already expressed her disagreement with the landmark 2015 case. Roberts, Gorsuch, Kavanaugh and Barrett have all strongly supported individual religious rights, not separation between church and state, and focused on the importance of the individual right to freedom of religion.
This issue will be tested in November, when the supreme court is scheduled to hear a major test of laws based on a case from the city of Philadelphia who terminated a contract with Catholic Social Services for screening parents for foster care citing religious objections after refusing to certify qualified same-sex couples. For everyone concerned about this issue – we all need to be ready for what may come down for an issue many had assumed already decided.