Last Monday the Supreme Court of the United States declined to hear a case brought by Kim Davis, a former country clerk who, in the wake of the Supreme Court’s 2015 decision in the Obergefell v. Hodges case legalizing same-sex marriage, who refused to issue certificates for such marriages because of her religious objections to them. She was sued and even jailed for this refusal and was appealing her case.
Despite the fact that Justices Samuel Alito and Clarence Thomas agreed with the dismissal on the basis that the case did not “cleanly” present issues raised in the 2015 ruling, they nonetheless availed themselves of this occasion to issue a broadside, penned by Thomas, lambasting the 2015 decision.
It is worth analyzing Alito’s and Thomas’s compulsion to express their objections to same-sex marriage in our current cultural and political context precisely because the denial of civil rights, particularly in the name of protecting religious liberties, has been at the forefront of the Trump administration’s agenda, spearheaded in particular by U.S. Attorney General William Barr.
Analyzing Alito’s and Thomas’s position in this context, we see patterns neither of free-thinking nor of adherence to the Constitution. Rather we see a pattern of highly prejudicial thinking and behavior geared toward ignoring, indeed abolishing, key civil rights legislation and constitutional protections against discrimination for Americans.
Thomas, for example, begins the critique of the 2015 decision asserting that “the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text.”
Interestingly, former Justice Antoni Scalia always made a similar argument against the Equal Rights Amendment, claiming the Constitution offered no provisions for women’s equality.
Yet the language of the 14th amendment is quite clear, including the clause:,
“nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
So, unless we imagine that LGBTQ people—and in the case of Scalia’s argument, women—are not people, it is not clear how the Constitution does not afford women and LGBTQ people equal rights and legal protections.
Here we see prejudice and what seems like hatred clouding textual interpretation. Is Thomas suggesting that every legal right must be enumerated in the 14th amendment to interpret it as affording to any person, simply by virtue of being a person, the same legal rights? That is the height of ludicrousness.
Equally ludicrous is Thomas’ assertion that Davis’ First Amendment rights were violated, as when he writes,
“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. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.'”
Let’s remember that Kim Davis worked in a public office where her job duties included issuing marriage certificates to those legally entitled to them.
By Thomas’ argument, the First Amendment now would entitle one to the right not just to speak out against laws one dislikes but the sanction to violate them, even if doing so means violating the legally-sanctioned civil rights of others.
That should strike us as quite a dangerous re-writing of the First Amendment—one on steroids.
Moreover, the position taken by Alito and Thomas seems to challenge the First Amendment rights of others.
Thomas, representing himself and Alito, writes that the court’s decision “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.”
In this instance, it sure sounds as if Alito and Thomas want to disable courts and governments from labeling certain discriminatory practices as bigotry, as if because the discriminatory practice finds justification in a religious text or belief system, it is no longer bigotry and discrimination—and one does not have the right to call it such in speech.
Indeed, Thomas writes, “Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy.”
Thomas is arguing, basically, that we judge people first, as of good will or not, and then assess their actions pursuant to that judgment. If one is of good will, their acts of discrimination are thus of good will and can’t be called bigotry.
But why does the source if bigotry and discrimination matter?
It is not consequential for the person denied employment or refused a marriage certificate if the denial of a right was rooted in good will, religious conviction, or outright malice or hate. But Thomas and Alito are willing to uphold one’s right to deny others’ rights if it is done in “good will.”
Effectively, Thomas and Alito are enabling the violation of people’s civil rights. Denying those rights doesn’t matter as long as it’s done with good will.
Indeed, Thomas and Alito believe: “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. Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws.”
That’s how civil rights legislation and constitutional protections are designed to work—they are supposed to make it difficult for people to participate in society without running afoul of them!
And they are rather “cavalier” about the right they want to give Davis and others, in the name of religious liberty, to violate people’s otherwise protected civil rights. We see no sympathy or consideration for those to whom Davis refused to issue a certificate.
Now it’s clear: Thomas and Alito just don’t like the law and want to facilitate people running afoul of it.
What we see in Trump’s administration, particularly with Barr, as I’ve written elsewhere, is the same: an attempt to deny civil rights simply because they don’t like those laws; they prefer white supremacy, or homophobia, or misogyny.
Barr hates that LGBTQ history and culture might be included in public school curricula. Doing so violates people’s rights to discriminate against LGBTQ people by making them invisible.
Trump incites racial violence against Jewish people and people of color.
I guess this is a kind of liberty, although I think it’s what we call taking liberties, most literally.
Tim Libretti is a professor of U.S. literature and culture at a state university in Chicago. A long-time progressive voice, he has published many academic and journalistic articles on culture, class, race, gender, and politics, for which he has received awards from the Working Class Studies Association, the International Labor Communications Association, the National Federation of Press Women, and the Illinois Woman’s Press Association.