Justice Amy Coney Barrett’s appointment to the Supreme Court gives it a conservative supermajority of six to three and Justice Barrett brings to the court her conservative viewpoints with a strong religious perspective. Her addition rightly made many worried for the future of Roe v. Wade and women’s fundamental right to seek an abortion. But we must also focus on an equally divisive case for conservatives: Obergefell v. Hodges and the fundamental right for same-sex couples to marry. Three sitting justices—Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito—vehemently dissented in the original Obergefell decision. While their dissents differed slightly in emphasis, each nonetheless expressed archaic views on “traditional” marriage as between one man and one woman. While Justice Barrett’s previous decisions do not offer insight on this matter, her religious perspective indisputably supports this “traditional” marriage viewpoint, bringing into question the viability of Obergefell’s future. Further, she implied in a 2016 speech that she thinks decision should be left to state legislatures rather than federal courts.
It’s important to note that overturning legal precedence is not a common occurrence, but neither is it unprecedented. The doctrine of stare decisis, which binds the Supreme Court to precedence, garnered controversy following Obergefell and, especially, Roe. The Supreme Court emphasized the importance of adhering to precedence in 1992’s Planned Parenthood v. Casey by establishing a four-part test. First, the Court asks whether the rule in question “has proven intolerable simply in defying practical workability.” Second, the Court asks whether the rule “is subject to a kind of reliance that would lead a special hardship to the consequences of overruling and add inequity to the cost of repudiation.” Third, the Court asks whether “related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine.” And finally, the Court asks whether “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.”
Fortunately, if we focus solely on the stare decisis test, Obergefell stands on strong footing. Overruling Obergefell would absolutely lead to “a special hardship to the consequences of overruling and add inequity to the cost of repudiation.” Nor has it proven unworkable.
Instead, if we look to the dissenting opinions in Obergefell, we see the dangers of this new supermajority’s bent toward expansive religious accommodation. The dissenting Obergefell opinions written by Roberts, Alito, and Thomas all expressed the “traditional” core understanding of marriage as between a man and a woman. Though their concerns on the ruling differed slightly.
Chief Justice Roberts began his dissent taking issue with what he believed to be a usurpation of the democratic process. According to the Chief Justice, “[i]t is not about whether, in my judgement, the institution of marriage should be changed to include same-sex couples. It is instead about whether in our democratic republic, that decision rest with the people acting through their elected representatives.” To Roberts, redefining the meaning of marriage was a policy concern, not a judicial one. Still, the remainder of his dissent emphasized the importance and persistence of “traditional” marriage between a man and a woman.
Similarly, Justice Alito wrote that “[t]oday’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” He went so far to claim the decision would “be used to vilify Americans who are unwilling to assent to the new orthodoxy.” In his view, those who hold “traditional” views of marriage will suffer “marginalization.” Justice Alito was adamant on his concerns for those holding “traditional” views of marriage.
Justice Thomas’ dissent mirrors the concerns of Chief Justice Roberts but details more particularly notions of “liberty,” arguing marriage is not a liberty and that same-sex couples are not denied any liberty by a state’s refusal to permit them to marry. Justice Thomas relies heavily on the idea that liberty is freedom from government restraint, not a right to government entitlement. But more concerning was his emphasis on marriage as a “religious institution.” Justice Thomas asserted religious liberty would be threatened by this decision.
Lastly, and very much worth noting, is the late Justice Antonin Scalia’s dissent. Justice Barrett clerked for Justice Scalia, and Justice Neil Gorsuch, appointed to the Court by Donald Trump after Obergefell was decided, was selected for possessing nearly identical views to the late justice. Scalia, like Chief Justice Roberts, took issue with the Supreme Court creating rights not enumerated in the Constitution or the Bill of Rights. Surprisingly absent from his dissent is the notion of “traditional” marriage views, the “marginalization” of those with such views, or the alleged assault the decision would have on religious liberty. Nonetheless, Scalia chastised the majority, vehemently denounced the idea that the Equal Protection Clause or the Due Process Clauses protected anything not explicit in the Constitution, and considered it an afront to law that the Supreme Court would “rob the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
These dissents are theatrics—mostly—attempting to vilify the majority under the guise of textualism and originalism and objecting to the idea that marriage is anything but the union of a man and a woman. However, the unifying concern for these dissenting Justices is the prospect that religious objections are left meaningless and cast aside. This proved false, of course, as private religious institutions were afforded exemptions.
For five years, this concern was otherwise left in the dissents of Obergefell. Recently, however, they’ve resurfaced in a case the Supreme Court denied reviewing: Davis v. Ermold, which is linked to another more pressing case with the same defendant, Miller v. Davis. In Miller it was asked, explicitly, whether a sincerely held religious belief against same-sex marriages could permit Ms. Davis, the county clerk of Rowan County, Kentucky, to deny issuing marriage licenses to such couples. The courts said no, and the Supreme Court denied review with no opinion.
That decision came in 2015, just after Obergefell. Now, in 2020, Ermold asked solely whether monetary damages were appropriate against the clerk. This was not a decisive question, and the court rejected the qualified immunity defense, awarding monetary damages to the couple. Davis appealed and the Supreme Court, once again, denied review. However, this rejection came with a concurrence by Justice Thomas, joined by Justice Alito, rehashing the concerns raised by himself and Justice Alito in Obergefell. The concurrence emphasized their view that Davis’ cases showed the “error” of Obergefell’s decision and whether the right for same-sex couples to marry must bend to religious objections. The timing is important as this concurrence came after Justice Barrett’s nomination, almost as a calling to Justice Barrett and a warning to the rest of us that Obergefell is in the crosshairs of this new conservative Supreme Court.
The result of having this super majority of conservative Justices is unclear. Stare decisis should protect Obergefell purely from a legal standpoint. It’s arguable that Chief Justice Roberts and Justice Gorsuch would agree as well. Both have sided with the liberal justices on matters regarding abortion rights and matters of anti-discrimination on the basis of sexual orientation. Instead, it is likely we will see religious accommodation become more and more expansive. The larger issue is how these accommodations will be doled out. In the instance of a clerk denying licenses to same-sex couples, as in Miller, the answer is unclear as the clerk is a public employee acting under the authority of the state. This question bundles together the concept of federalism and the applicability of constitutional rights against state obstruction.
Recently, the Court heard arguments in Fulton v. City of Philadelphia, asking whether a Catholic foster agency had its Free Exercise rights violated by Philadelphia’s anti-discrimination laws regarding same-sex couples. Discouragingly, during oral arguments, Justice Barrett directly remarked on the question of overturning Employment Division v. Smith, which set an important restraint on the idea of religious belief being above the law. This case follows the likes of Trinity Lutheran Church of Columbia, Inc. v. Comer, Our Lady Guadalupe Sch. v. Morrissey-Berru, and Espinoza v. Montana Department of Revenue regarding the relationship between generally applicable laws and private religious institutions. Nonetheless, this case stands to lengthen the growing gap between a sincerely held religious belief and protections from discrimination. Justice Barrett’s decision in this case will provide guidance on her future decisions going forward.