The Supreme Court justice who brought us the Dobbs decision overturning federal abortion rights is now implying that marriage equality may be next on the chopping block.
U.S. Supreme Court Justice Samuel E. Alito Jr. issued a resentful five-page caveat on Tuesday charging that a legal case “exemplifies the danger that I anticipated in Obergefell v. Hodges, 576 U. S. 644 (2015), namely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government.” Alito had dissented from the Obergefell decision granting a federal right for gays to marry.
His troubling remarks came in a statement about why the court voted not to hear an appeal challenging the removal of jury members who indicated they had religious objections to gay relationships, in a case dealing with discrimination against a gay state corrections employee. One juror admitted that “homosexuality, according to the bible, is a sin.” Another likewise said that homosexuality is a sin because “it’s in the bible.” A judge’s ruling to strike them was affirmed by the Missouri Court of Appeals, which noted the jurors weren’t dismissed based on their status as Christians, but because of their prejudicial views.
Alito wrote that holding that someone who has “traditional religious views on questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian” shows “the danger” from Obergefell. As the New York Times ominously points out, only two justices (Sonia Sotomayor and Elena Kagan) who ruled in favor of Obergefell, which was decided by a 5–4 margin, remain on the bench.
Once again in his opinion, Alito reveals petulance, or what Supreme Court observer Linda Greenhouse has dubbed the “politics of grievance” that mark his writings. The attack on Obergefell is no surprise, as Justice Clarence Thomas urged its overthrow in his concurring opinion in the Dobbs decision and that of other cases built on the constitutional right to privacy (notably omitting the case affirming the right to interracial marriage).
But — hold on! On page 37 of the 2022 Dobbs v. Jackson Women’s Health Organization decision authored by Alito, he pooh-poohed the critics who warned that overturning Roe would endanger Obergefell, as well as the Griswold and Eisenstadt decisions (finding a right to contraception) and the Lawrence decision (finding a right to consensual sexual conduct with adults of the same sex). Alito dismissed such concerns as “designed to stoke unfounded fear that our decision will imperil those other rights.”
Of course, Alito had already revealed his true colors when he and Thomas wrote an earlier statement in 2020 about why the Supreme Court should have accepted the appeal of notorious Kentucky County Clerk Kim Davis, who refused to issue marriage licenses to same-sex couples. In their four-page statement, Thomas complained that Christian officials were being discriminated against and that “people of goodwill” were being labeled as “bigots.”
Both Alito and Thomas seem to be in agreement with the author of a bizarre new Florida bill, which would treat any accusations of racism, homophobia, sexism or transphobia as defamatory, but would explicitly protect discriminatory religious statements. It’s religious privileging personified.
If Obergefell were overturned, with the right to marriage equality left up to individual states as abortion rights are now, chaos will descend, as it has regarding abortion. As many as 35 states already have marriage bans (25 in both their statutes and their constitutions). It’s even possible the high court could invalidate all marriage by same-sex couples. Likely, same-sex marriage rights would fare better than abortion rights, because the congressional Respect for Marriage Act ensures that the federal government recognizes interracial and same-sex marriages and requires states to recognize such marriages from other states. But states with marriage equality bans could challenge parental rights, such as in schools, emergency rooms or airports, or deny nonbirth parents recognition on birth certificates. Who knows what Machiavellian proposals would be floated to deny adoptions or otherwise discriminate against same-sex couples?
Clearly, Christian fanatics are not content with the Dobbs decision leaving abortion rights to the states, but seek ever new ways to abolish all abortion, even at the risk of the pregnant person’s life. Overturning Obergefell would likewise just be the beginning for those Christian bigots (yes, Justices Thomas and Alito, bigot is the operative word) who believe gays and other LGBTQ individuals are “sinners” because the bible says so.
The Freedom From Religion Foundation is a national nonprofit organization with over 40,000 members and several chapters across the country. Our purposes are to protect the constitutional principle of separation between state and church, and to educate the public on matters relating to nontheism.
