Davis was defeated for reelection, and sued by two same-sex couples for refusing to issue marriage certificates. Her claim of qualified immunity was rejected by a panel of the U.S. Court of Appeals for the 6th Circuit.
Justices Clarence Thomas and Samuel A. Alito Jr. said they agreed with the court’s decision not to accept Davis’s appeal, but used the occasion to renew their objections.
“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,” Thomas wrote. “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 anti-discrimination laws.”
Thomas continued: “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.”
The stinging opinion from Thomas renewed the debate over how established the court’s Obergefell decision should be seen. Some liberal activists said it was an indication the court might revisit the decision, especially if President Trump’s nomination of Judge Amy Coney Barrett is successful.
That would give the court a 6-to-3 conservative majority, and Barrett in the past has expressed skepticism about the Obergefell decision.
But Chief Justice John G. Roberts Jr., the only other dissenter from the 2015 decision still on the court, did not join Thomas’s opinion, nor did Trump’s other nominees to the court, Justices Neil M. Gorsuch and Brett M. Kavanaugh.
As is customary, the court did not give a reason for not accepting Davis’s case.
“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,” said James Esseks, director of the ACLU’s LGBT & HIV Project. “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. Our government could not function if everyone doing the government’s business got to pick their own rules.”
Thomas and Alito said they agreed with the decision not to accept the case, because it did not “cleanly” present the questions they felt are raised by the court’s 5-to-4 decision. And Thomas did not call explicitly for revisiting the question of whether states may deny marriage to same-sex couples.
“Nevertheless, this petition provides a stark reminder of the consequences of Obergefell,” Thomas wrote. “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.”
The question of what happens when religious beliefs collide with anti-discrimination laws returns to the court next month. It will hear a case about the city of Philadelphia’s decision to end a contract for foster-care services with a Catholic agency that refuses to work with same-sex couples.
The case denied Monday is Davis v. Ermold.