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Can the 2015 Obergefell v. Hodges decision—the case that legalized gay marriage in the United States—be overturned?

The possibility that same sex marriage can be overturned in the near future has been laid bare last Monday when Supreme Court Justices Clarence Thomas and Samuel Alito released a statement saying that marriage equality “threatens religious liberty.”

The statement came as the Supreme Court rejected to hear the appeal of former Kentucky clerk Kim Davis. Davis was incarcerated way back in 2015 for refusing to issue marriage licenses to same-sex couples after they won the right to marry nationwide.  

As a result, Davis had been sued for damages by couples David Ermold and David Moore as well as James Yates and Will Smith. Davis, however, argued that she is entitled to qualified immunity because she was a government employee at the time which means she was protected from civil suits like the ones filed by the aforementioned gay couples.

While Alito and Thomas agreed with the decision not to hear Davis’s case, their statement saying that the “court had ‘bypassed the democratic process’ and left those with religious objections to same-sex marriage ‘in the lurch'” alarmed many in the LGBT community.

Alito said:

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.

Further, Alito’s statement reads:

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. … 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.

For his part, Thomas said he agreed with the rejection of Davis’s appeal because “this petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them.” 

Thomas added, “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.'”

Meanwhile, James Esseks condemned Justices Thomas and Alito’s statements during an interview with The Guardian. Esseks, who is the director of the American Civil Liberties Union (ACLU) LGBT and HIV Project, said, “It is appalling that five years after the historic decision in Obergefell, two justices still consider same-sex couples less worthy of marriage than other couples.”

He added, “When you do a job on behalf of the government – as an employee or a contractor – there is no license to discriminate or turn people away because they do not meet religious criteria.”

Further, Esseks vowed, “We will fight against any attempts to open the door to legalized discrimination against LGBTQ people.”

Esseks also told The Guardian that Thomas’s and Alito’s statement is just “a preview of what some justices’ views are.” He said he does not believe it will end marriage equality because “the freedom to marry has become part of American culture.'” Esseks, however, fear that “same-sex marriages could be treated differently.” Read the story in full here and here.

Netizens, of course, have taken to the social media to react about the news:

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