The Long-Lasting Effects of Obergefell

by Paul Engel

 

Outline of analysis. Engel details the:

  1. Background of the case
  2. Resulting court opinions
  3. Effects of those opinions
  4. Why the opinions are inaccurate and unconstitutional

 

When I read the statement made by Justice Thomas, joined by Justice Alito, in the case of Davis v. Ermold, I saw evidence that a “government of the people, by the people, for the people” appears to have perished from the Earth.

The Supreme Court recently denied the petition for a writ of certiorari (for the court to hear) in the case of Kim Davis v. David Ermold. You may remember this as the case of the Kentucky county clerk who was sued because she refused to issue marriage licenses to same-sex couples. Reading Justice Thomas’ statement not only showed how badly that case was decided, but the discrimination it has brought to our nation. You may be asking yourself, why I am reviewing a five year old case? Because the recent case Davis v. Ermold gives evidence not only of how bad the Obergefell decision was, but how the entrenched, dogmatic devotion to precedent prevents the citizens of this country from obtaining justice from what we euphemistically call our “justice system”.

Obergefell v. Hodges

In Obergefell v. Hodges, 576 U. S. 644 (2015), the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text.

Statement of THOMAS, on Petition of writ of certiorari

Whether you believe same sex marriages should be legal or not, the question I want to look at is how this came about, and the easily anticipated consequences of the opinion.

Kim Davis, a former county clerk in the Commonwealth of Kentucky, was responsible for authorizing marriage licenses. Davis is also a devout Christian. When she began her tenure as clerk, Davis’ sincerely held religious beliefs— that marriage exists between one man and one woman— corresponded with the definition of marriage under Kentucky law.

Statement of THOMAS, on Petition of writ of certiorari

When Ms. Davis took the job as county clerk, there was no division between what she believed and the laws of both in Kentucky and the United States. However, that was about to change. 

Within weeks of this Court granting certiorari in Obergefell, Davis began lobbying for amendments to Kentucky law that would protect the free exercise rights of those who had religious objections to same-sex marriage. But those efforts were cut short by this Court’s decision in Obergefell.

Statement of THOMAS, on Petition of writ of certiorari

Notice, Ms. Davis did not try to stop those who wanted same-sex marriages from petitioning their government or to stop the government from enacting same-sex marriage laws. What she wanted were legal protections for those who had religious objections, so that all the people of Kentucky could retain their freedom to worship, not just in churches, but anywhere. This would also include the freedom to speak and the liberty to live their lives as they see fit, without government interference. The need for such protections would soon become apparent.

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.

Statement of THOMAS, on Petition of writ of certiorari

There are a couple of things worth pointing out in this part of Justice Thomas’ statement. First, while Ms. Davis did face a choice between her religious beliefs and her job, it’s worth pointing out that it was a government job. That government that was created by the Constitution of the Commonwealth of Kentucky and a government regulated by the constitutions of both the Commonwealth and the United States. Second, and more importantly, Justice Thomas notes that the court effectively altered the Constitution.

Attacks on Religious Liberty

As I have already quoted from Justice Thomas, the court had found a right in the Fourteenth Amendment that does not exist in the text. That this would cause problems should have been a surprise no one. It certainly didn’t surprise some of the members of the Obergefell court.

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. Id., at 711 (ROBERTS, C. J., dissenting); id., at 734 (THOMAS, J., dissenting). The Court, however, bypassed that democratic process.

Statement of THOMAS, on Petition of writ of certiorari

America is not a democracy, but a republic, so technically the court violated the republican process.

REPUB’LIC, noun A commonwealth; a state in which the exercise of the sovereign power is lodged in representatives elected by the people.

Webster’s 1828 Dictionary

Not only did the court violate the republican process, but the very Constitution itself. They not only placed their opinions above the law, but above the will of the people as expressed in the Constitutions of the Commonwealth of Kentucky and of the United States. The U.S. Constitution does not give the United States the authority to define marriage and neither does it give the judicial branch the authority to rewrite or reinterpret the Constitution; only the states have that power. By depriving Congress of their legislative power as defined in Article I and the states of their power to legislate what is not delegated to the United States and protected by the Tenth Amendment, the Supreme Court effectively usurped the levers of power in this country. The majority violated both their oaths of office (to support the Constitution of the United States), and the terms of their office by behaving so badly.

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,

U.S. Constitution, Article III, Section 1

Not only did the court usurp power, but they slandered millions of Americans with strongly held religious beliefs.

Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often “decent and honorable,” id., at 672, the Court went on to suggest that those beliefs espoused a bigoted worldview, ibid. See also id., at 670 (noting that such a view of marriage is “demean[ing]” to gays and lesbians because it “teach[es] that gays and lesbians are unequal”); id., at 671 (describing the view of marriage dictated by the religious beliefs of many as “impos[ing] stigma and injury”); id., at 675 (characterizing the traditional view of marriage as “disrespect[ful]” to gays and lesbians).

Statement of THOMAS, on Petition of writ of certiorari

While I do believe that anyone should be able to live their lives as they see fit, as long as they do not infringe on the legitimate rights of others, the language of Obergefell not only slandered millions of Americans, but also had the quite obvious effect of doing to faithful Christians, Jews, Muslims, and others, exactly what the court claimed the traditional view of marriage did to gays and lesbians.

The dissenting Justices predicted that “[t]hese . . . assaults on the character of fairminded people will have an effect, in society and in court,” id., at 712 (opinion of ROBERTS, C. J.), allowing “governments, employers, and schools” to “vilify” those with these religious beliefs “as bigots,” id., at 741 (opinion of ALITO, J.). Those predictions did not take long to become reality.

Statement of THOMAS, on Petition of writ of certiorari

Which brings us back to Davis v. Ermold. As expected, the damage done by Obegefell did not stop there.

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.

Moreover, Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss. For example, relying on Obergefell, one member of the Sixth Circuit panel in this case described Davis’ sincerely held religious beliefs as “anti-homosexual animus.” 936 F. 3d 429, 438 (2019) (Bush, J., concurring in part and concurring in judgment). In other words, Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals. This assessment flows directly from Obergefell’s language, which characterized such views as “disparag[ing]” homosexuals and “diminish[ing] their personhood” through “[d]ignitary wounds.” 576 U. S., at 672, 678. Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy. See Campaign for Southern Equality v. Bryant, 197 F. Supp. 3d 905, 910 (SD Miss. 2016) (recognizing the plaintiffs’ argument equating an accommodation allowing religious objectors to recuse themselves from signing same-sex licenses with impermissible discrimination); Brush & Nib Studio, LC v. Phoenix, 244 Ariz. 59, 66, 418 P. 3d 426, 434 (2018) (describing owners of wedding studio who declined to participate in same-sex weddings for religious reasons as treating homosexuals like “‘social outcasts’” (quoting Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. , (2018)

Statement of THOMAS, on Petition of writ of certiorari

The Obergefell opinion is not only being used to discriminate against the free exercise of religion, but the right of Ms. Davis to worship God according to her own conscience:

… and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.

Constitution of Kentucky, Bill of Rights, Section 5

It can also be used to effectively create religious test for those who wish to work in U.S. government. By requiring that someone compromise their faith in order to receive employment, we now have a religious test, disguised as compliance with a judicial opinion. This is a direct violation of Article VI of the United States Constitution.

… but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

U.S. Constitution, Article VI, Clause 3

Justice Thomas Conclusion

After reading all of this, I’m sure most of you would conclude that Justice Thomas, who dissented in the Obergefell case, would be ready to revisit that decision.

This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari.

Statement of THOMAS, on Petition of writ of certiorari

Justice Thomas does not tell us what the confounding issues were in this case, only that it wasn’t “clean” enough for him. After reading the aftermath he has already quoted, I wonder what it would take for Justices Thomas and Alito to agree to the court reviewing, much less overturning, that opinion.

Nevertheless, this petition provides a stark reminder of the consequences of 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. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”

Statement of THOMAS, on Petition of writ of certiorari

While I disagree that the court has created a problem only it can fix, I have to wonder about a justice who is unwilling to stand up, even in a minority, and call for the court to review what’s being done to the people of American as a consequence of their opinion.

Conclusion

Why do I say that the Supreme Court is not the only fix for this problem? Because the Constitution does not delegate to the court the authority of final arbiter of what’s Constitutional. In fact, the Constitution does not delegate to the federal government the power of final say on what the Constitution says or means. That’s a power reserved to the states.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Furthermore, the courts have no power to enforce their decisions. They are dependent on the executive branches of both the state and federal governments to act on their opinions.

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Alexander Hamilton, Federalist Papers #78

It’s only our slavish devotion to placing the opinions of courts above the actual law that gives these judges any power at all. We have hired executives that have given over their control of the sword to the courts that grants them strength. And it’s the fact that we have hired representatives who have delegated their power to legislate that have given the courts’ their will. It’s time we return the Constitution to its rightful place as the supreme law of the land, and relegate what comes out of the courts back to the role of opinion only. If their opinions are good, if they seek justice within the confines of the laws We the People and our representatives have created, then they are worthy of consideration. If not, then they should be thrown onto the trash heap of history, just as we have done with the Dred Scott opinion.

There are some that will call me an anarchist, or claim I am trying to subvert the rule of law, for what I have said. They will claim I am promoting civil disobedience or a desire to overturn our government. On the contrary, I am suggesting we uphold the rule of law, including the law that limits the powers of the branches of the federal government. I want to restore order and justice to a system that has become as tyrannical as the one we threw off 244 years ago. I want all Americans to uphold the law, according to the words of Alexander Hamilton:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. 

Alexander Hamilton, Federalist Papers #78

If both the legislature and the judiciary swear or affirm to uphold the Constitution, would not a judicial act contrary to that law be just as invalid? Or as Chief Justice Marshall put it:

If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

Marbury v. Madison Opinion

Would not an act of the judiciary repugnant to the Constitution be just as void? Then what I am calling for is not civil disobedience, but peaceful non-compliance with an opinion which not only is devoid of the force of law, but is, by its violation of the Constitution, void.