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Can the Supreme Court Overturn Marriage Equality?

Supreme Court Justice Clarence Thomas (joined by Alito) wrote a statement this week signaling his willingness (fervor?) to overturn Obergefell v. Hodges, the case that made marriage equality legal.

By Nate Clark

| Updated August 12, 2021

Hi there. I’m just thinking about religious liberty and the First Amendment and what it means to have my marriage up for debate by someone like justice, Clarence Thomas, who by all accounts, or at least the accounts of five credible witnesses, likes to talk to his coworkers about pornography showing women having sex with animals. In case you missed it—because this has been an absolute shitstorm of a crazy week—Supreme Court justice Thomas, joined by justice Alito, issued a four page statement this week about why they think the Supreme Court’s decision to protect same sex. Marriage did more harm to the abstract idea of religious freedom than it did to protect the actual freedom of people like me. Kim Davis, the Kentucky clerk. Do you remember her? Yeah. She’s the one who was sued when she refused to issue marriage licenses to two same sex couples.

Anyway, she tried to appeal her case to the Supreme Court all these years later because she just, she’s still, she still doesn’t get it. The Supreme Court declined to hear her appeal, but Thomas and Alito used the decision to decline her appeal as an opportunity to release a statement trashing the Obergefell decision—the marriage equality decision—and it seems urging the Supreme Court to reconsider its ruling on same-sex marriage. So what did old “pubic-hair-on-the-Coke-can” say about it in this statement? There’s a lot. He says that the marriage equality decision allows society to cast people of good will as bigots. He calls the 14th Amendment’s equal protection for all people under the law, “a novel constitutional right,” and implies that it undermines the religious liberty interests explicitly protected in the First Amendment. If you subscribe to that logic, he’s basically saying that the First Amendment should have protected slave owners, which is a crazy thing for Clarence Thomas to say.

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And also he overtly threatens the marriage equality ruling by saying that in ruling in favor of marriage equality, “the court has created a problem that only it can fix.” I mean, that is like right out of a Godfather movie. It’s a pretty obvious threat to my marriage. First of all, the First Amendment doesn’t use the words “religious liberty.” What it does say is this: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” When the court legalized same sex marriage, it actually affirmed the First Amendment by making sure that local governments and the Federal government and state governments aren’t relying on religion to define a legal institution like marriage. Further, the ruling did nothing to prohibit the free exercise of religion or freedom of speech or anything else. Everyone is still able to believe whatever the hell they want to believe. They can assemble.

They can talk about it. They just aren’t allowed to establish those beliefs in a governmental capacity, which is exactly what the First Amendment says. Clarence Thomas claims that the Supreme Court’s decision in Obergefell, the marriage equality case, that that decision circumnavigated the democratic process. He argues that if the case for marriage equality were argued at the state level, states would be able to provide protections for those people in society who object to same-sex marriage on the basis of their religion. But why the hell do those people need protections? Protections from what? Thomas thinks that if states were able to, on a state-by-state basis, determine if same-sex marriage should be legal, that they could then also at the same time, consider new laws to protect the people who disagree with that idea. He implies that people like Kim Davis—a government employee who also happens to be a devout Christian—should be protected from repercussions when they declined to provide government services, for which they’re paid for, to same-sex couples.

But why? Why should the Kim Davis’s of the world have that protection? Why should someone whose salary is paid by our tax dollars be able to decline us services based on her religious beliefs? The First Amendment does not protect government employees from doing their jobs on the basis of religion. It doesn’t say that. Of course you have the right to believe whatever you want. That right is protected by the Constitution. You can hate me and make a religion out of hating me because of the way I look or the things I believe or the people I love. Nobody is stopping you from your right to think that you are better than me. But we also have a separation of church and state in this country, spelled out by the First Amendment for exactly that reason. Because, since everyone has the right to believe what they want, that might mean someone else hates you because of the way you look or the things you believe or the people you love.

The separation between church and state ensures that everyone has the right to their religious beliefs without the government telling them what to believe. Marriage as an institution is explicitly tied to our government. Aside from the many religious associations that marriage has, marriage is essentially a corporate structure that people use to protect their families in the eyes of the law, to protect their property and their assets in the eyes of the law, to protect their children in the eyes of the law, and much, much more than that. Marriage is not just a private club reserved for people with similar religious beliefs. All the different religions have some form of marriage or most of them do anyway. Marriage in the United States is a legal contract between us and the government and it’s well established. So why should one person’s religious belief dictate the ability of another person to enter into that contract with their government?

The First Amendment explicitly prevents the government from establishing rules like that. What if someone’s religion tells them that they can’t recognize a marriage between people of different races, which sadly actually used to be the case for some religions. If someone believes that bullshit today and they work for the government, should they be allowed to deny government services to a mixed-race couple? Of course not. Justices Thomas and Alito might have argued that race is a trait while sexuality is a choice or a preference, even though that has been thoroughly debunked by modern science, but they didn’t even argue that. That’s not the argument they’re making. They seek to use the religious freedom argument as a pathway for states to legalize discrimination, pure and simple. Thomas and Alito argue that Federally recognized marriage equality undermines religious freedom and undermines state’s rights. But this is just a thinly veiled way of saying that what they believe is that states should decide if discrimination is acceptable. It’s Jim Crow, except they would have us segregating people by sexuality and by state. Thomas also wines in this statement—a lot—about how the marriage equality decision paints conservative Christians as bigots. And you know what, he’s right about that because they are bigots.

At least that’s what I believe. But if I were working for my local government, I’d still let those bigots access all the same services that everyone else gets to access because they’re protected. That’s a protection the Constitution provides for them, even for hypocrites like Clarence Thomas. Oh, I’m so tired. Before I get off my soapbox, I just want to say one more thing. For anyone who thought the fight for same-sex marriage was settled and done, this statement this week from two current Supreme Court justices confirms that it’s not. They will overturn that ruling if they have a majority. If you know, or you love, an LGBTQ person or their family, please vote for leaders who protect our rights. If you don’t care about our rights, if don’t care about equal protection for everyone under the eyes of the law, if you don’t care about the 14th Amendment, you can fuck right off. And yeah, I’m actually talking to members of my own family right now. Fuck you. But for everybody else, get out there and vote. And thanks for listening.

About the Author

Nate Clark

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Nate Clark has been making content for the Internet since 1921. He's best known as a musical comedian performing at the Upright Citizens Brigade theatre in Los Angeles, a fitness enthusiast and author, and as a voice talent for lots of stuff. He's also a filmmaker, and has directed content for brands including Louis Vuitton, FENDI, The New York Times, Breeders' Cup, and many more. He lives in West Hollywood, CA, but he doesn't like visitors.