Conservative Justices Thomas and Alito Suggest Supreme Court Should 'Fix' Its Ruling That Legalized Gay Marriage

Conservative Supreme Court Justice Clarence Thomas, joined by fellow conservative Justice Samuel Alito, argued in a Monday statement that the landmark 2015 ruling legalizing same-sex marriage nationwide was improperly decided and suggested the court should "fix" the decision.

The statement, written by Thomas and joined by Alito, was attached to a decision from the top court allowing a lower court's ruling against Kim Davis to stand. Davis was a county clerk in Kentucky who infamously refused to issue marriage licenses to same-sex couples because of her religious objections. Although Thomas and Alito joined the majority in rejecting Davis' case, they argued that it raised important questions about Obergefell v. Hodges—which legalized same-sex marriage across the country.

"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," Thomas wrote. "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."

Clarence Thomas
Associate Justice Clarence Thomas poses for the official group photo at the Supreme Court on November 30, 2018. Thomas and Justice Alito said Monday that the court's 2015 ruling legalizing same-sex marriage nationwide was improperly decided. MANDEL NGAN/AFP/Getty

In conclusion, Thomas wrote that "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.' 576 U.S., at 734 (THOMAS, J., dissenting)."

A media representative for the Supreme Court, contacted by Newsweek, did not have any further comment besides the conservative justices' statement.

Some were quick to raise concerns about the statement. Chase Strangio, a lawyer and transgender rights activist, warned that the justices wanted to "overturn" the landmark 2015 decision. "First day of the SCOTUS term and Alito & Thomas call for the overturning of Obergefell," Strangio tweeted.

"So much for precedent and judicial restraint. Two justices now openly call for an end to marriage equality—knowing reinforcements are on the way," former Democratic presidential candidate Pete Buttigieg, who is gay and married, tweeted. "The stakes could not be higher."

The Human Rights Campaign, the nation's largest LGBTQ advocacy organization, tweeted, "The alarming statements from Justices Thomas and Alito regarding marriage equality are a clear sign that LGBTQ rights still hang in the balance with the Supreme Court. Our love is valid, our love is equal and our rights must be."

The conservative justices' statement comes as Senate Republicans are moving rapidly to confirm President Donald Trump's Supreme Court nominee, Amy Coney Barrett, a deeply conservative judge. Democrats have strongly opposed Barrett's nomination, warning that reproductive rights, the Affordable Care Act and LGBTQ issues could all be threatened by her nomination. Barrett's nomination would tilt the top court's balance further in support of conservatives—giving them a 6-3 majority.

But even with a 5-4 conservative majority, the Supreme Court—in a somewhat surprising decision—ruled 6-3 in June that LGBTQ individuals are protected by the 1964 Civil Rights Act from being fired based on their sex or sexual identity. The majority opinion was written by conservative Justice Neil Gorsuch, who was appointed by Trump. Alito and Thomas were joined by Trump appointee Brett Kavanaugh in dissenting against that ruling.