On Monday, the first day of its session, the Supreme Court declined to hear an appeal from Kim Davis, the county clerk from Kentucky who was jailed in 2015 when she refused to issue marriage licenses to same-sex couples, claiming that doing so would contradict her sincerely held religious beliefs. The case posed a direct challenge to the decision in Obergefell v. Hodges, which found that marriage between two people of the same sex was a constitutional right. Justice Clarence Thomas, despite agreeing with the decision to deny Davis’s appeal, wrote a statement on behalf of himself and Justice Samuel Alito in which he called on the Court to overturn Obergefell. “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,” Thomas wrote. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’ ”
This scathing description of the decision, and the call for overturning it, are extraordinary. Although the Court can and does overturn its own decisions, it has historically seen them as binding for at least a generation. But with its two Trump-appointed Justices and another likely on the way, this is no ordinary Supreme Court. It is one that’s coming to embody the spirit of the current Administration in its gratuitous cruelty.
The desire to take rights away from people reaches a degree of malice that is distinct from not granting people rights in the first place. Most L.G.B.T.Q. people over the age of thirty can feel it in our bones. When I was a teen-ager coming out, in the early nineteen-eighties, for example, I simply knew that marriage was for other people. Same-sex marriage was unthinkable, in the sense that it had barely been conceived of by even the most imaginative gay activists, much less straight people, the courts, or the legislatures. In the nineties, some gay and lesbian activists launched a concerted effort to get the country to think about same-sex marriage. The first reaction in the American political mainstream was panic, which produced the Defense of Marriage Act, a federal law that defined marriage as the union of a man and a woman; President Bill Clinton signed it into law in 1996. In 2013, after nearly half the states had legalized same-sex marriage, the Supreme Court struck down DOMA as unconstitutional in United States v. Windsor. “DOMA writes inequality into the entire United States Code,” Justice Anthony Kennedy wrote for the majority. “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” The country, and the Court, had become used to the idea of same-sex marriage.
Kennedy wrote the Obergefell decision, too, and in it, he traced the evolution of thinking about L.G.B.T.Q. people and their unions. “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed,” he wrote. He didn’t mean that the Court had gained new insight into the institution of marriage—on the contrary, he stressed that the understanding of marriage itself, its centrality and importance, was well established. Kennedy noted that the Court had previously found a profound connection between marriage and liberty; that it had held that “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals”; and that marriage “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” In other words, the right to marry was among the “interests of the person so fundamental that the State must accord them its respect.” The new insight here was that L.G.B.T.Q. people are human beings. Once this insight had occurred, the Justices could not wait for Congress to act, and had to step in and right the wrongs perpetrated by denying same-sex couples the right to marry.
The urgency stemmed from an understanding of the singular importance of marriage. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” Kennedy concluded. The petitioners’ “hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
I do not share Kennedy’s exalted view of marriage. I don’t think that the unmarried are “condemned to live in loneliness,” nor do I think that marriage is essentially bound to liberty. At the same time, my life, and the lives of my children, would be different—more difficult, more dangerous, and likely poorer—had I not been able to marry my former partner. Many of my friends are similar marriage skeptics who at some point married their longtime partners because of the many rights and benefits marriage can confer: health insurance, hospital visitation, inheritance, survivor benefits, presumed parentage of any children born to one of the partners, joint adoption, immigration, and others, for a total of about a thousand, by the Court’s own count, as cited in the Windsor decision. These are among the rights that Thomas is effectively arguing should be taken away from same-sex couples, out of respect for some people’s sincere religious beliefs.
In his four-page statement from Monday, Thomas did not appear to argue that the Court should change its view of marriage itself: marriage remains a fundamental right, a right essential to being human. Yet Thomas maintains that the right of same-sex couples to marry does not exist: he calls it “atextual” and “novel.” In his dissent in Obergefell, Alito, who was joined by Thomas and the late Antonin Scalia, accused the Court of “inventing” the right to same-sex marriage. Hannah Arendt once observed that the concept of human rights was limited by the ability of people to gain membership in a political community that would recognize the humanity from which their basic rights followed. By saying that the right to marriage is fundamental but does not accrue to same-sex couples, Thomas is making a case to expel L.G.B.T.Q. people from the American political community.
Kennedy is retired and Ruth Bader Ginsburg is dead. Neil Gorsuch has written in the past that the Constitution does not protect same-sex marriage, although he appeared to hedge his stance during his confirmation hearings. Brett Kavanaugh repeatedly refused to state during his confirmation hearings whether he felt Obergefell was correctly decided. A consortium of twenty-seven L.G.B.T.Q. advocacy groups opposed the confirmation of Amy Coney Barrett to the Seventh Circuit Court of Appeals, in 2017; Barrett is now Trump’s third nominee to the Supreme Court. With more challenges to Obergefell certainly coming, Thomas may now be speaking for the majority of the Court. There is no doubt that he is expressing the ethos of the Administration that has reshaped the Court: it excludes and it dehumanizes.