It's been five years since the Supreme Court unleashed same-sex marriage on America. And while time may have passed, it hasn't healed. At least two justices on the court still deeply regret what the Obergefell decision has done to the country - and religious freedom in general. And on Monday, they took the unusual step of warning the nation what's at stake if the justices don't fix the problem they created.
Usually, the Supreme Court's order lists don't make the news. But yesterday's, when the court unanimously refused to hear a case by Kim Davis, the Kentucky clerk who was jailed for refusing to sign her name on same-sex marriage certificates, made instant headlines. Ironically, it wasn't the court's denial of Kim's case that was newsworthy, but the statement by Justice Clarence Thomas (joined by Justice Samuel Alito) that was issued alongside the decision.
"In Obergefell v. Hodges, the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text. Several Members of the Court noted that the Court's decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs."
As they noted, the Court itself is to blame for this:
"The Court, however, bypassed that democratic process. Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often 'decent and honorable,' the Court went on to suggest that those beliefs espoused a bigoted worldview (noting that such a view of marriage is 'demean[ing]' to gays and lesbians because it 'teach[es] that gays and lesbians are unequal')... The dissenting Justices predicted that '[t]hese... assaults on the character of fair-minded people will have an effect, in society and in court,' allowing "governments, employers, and schools' to 'vilify' those with these religious beliefs 'as bigots.' Those predictions did not take long to become reality."
As Justices Thomas and Alito note, Kim Davis is only one victim of this process:
"As a result of this Court's alteration of the Constitution, Davis found herself faced with a choice between her religious beliefs and her job. When she chose to follow her faith, and without any statutory protection of her religious beliefs, she was sued almost immediately for violating the constitutional rights of same-sex couples.
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 antidiscrimination laws. It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law. But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch."
Five years into this experiment of same-sex marriage, men and women of faith have plenty of regrets about that devastating June day in 2015. Like the crushing Bostock decision that redefined the human sexes earlier this year, the activist court has inflicted more than its share of pain. Just for acknowledging that, Justices Thomas and Alito should be commended. Their statement was significant in large part, because they didn't have to issue it. They chose to, out of a deep and abiding conviction that religious freedom matters - and unless something is done to protect it, the consequences are only going to get worse.