“Ruinous Consequences for Religious Liberty” — A Prophetic Warning from Two Supreme Court Justices

The new session of the United States Supreme Court began this week—and the term began with eight justices instead of nine, due to the death of Justice Ruth Bader Ginsburg.

Without a full bench, some of the cases argued before the Supreme Court might come down to a 4 – 4 split decision. A divided Court would leave many of our nation’s fundamental and constitutional questions unanswered.

This is especially troubling given the cases on the docket in this session—cases of enormous concern for Christians.

On Monday, the Supreme Court declined to take up the appeal of Kim Davis, a former Rowan County clerk in the Commonwealth of Kentucky. After the Obergefell decision in 2015, which legalized same-sex marriage in all fifty states, Davis refused to issue marriage licenses for same-sex couples. This engendered numerous legal issues and court battles. Davis had been fighting a lawsuit against her which she appealed to the United States Supreme Court. That battle ended on Monday when the Court declined her appeal.

While the whole Court decided not to take the case, Justices Samuel Alito and Clarence Thomas wanted to use this situation to make a point. On the one hand, they agreed not to take up Davis’s case because the legal matters were not “clean.” On the other hand, the justices argued that the case of Kim Davis represented the foreseen and predictable consequences of the Obergefell decision. The unilateral move taken by the Court in 2015 set up a massive collision between the newly invented sexual liberties associated with the LGBTQ movement and religious freedom.

In a statement written by Justice Thomas but joined by Justice Alito, the two justices argued that Davis’s case was, “a stark reminder,” that “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of the decision and its effect on other anti-discrimination laws.”

The Court, as the justices contended, chose to endorse, “a novel Constitutional right,” over the religious liberty interests explicitly enumerated in the First Amendment. The 2015 decision created a problem only the Court can resolve: “Until then, Obergefell will continue to have ruinous consequences for religious liberty.”

That is incredibly strong language from two justices on the nation’s highest court. They knew in 2015 as they know now that Obergefell posed a serious threat to America’s first liberty.

Indeed, during Obergefell’s oral arguments, Solicitor General Donald Verrilli was asked whether or not a decision in favor of same-sex marriage would result in a conflict with religious freedom. Would, for example, religious institutions and Christian colleges be expected to suspend their admissions and hiring standards? In a chilling moment of candor, Verrilli said, “It is going to be an issue.”

Those could not have been more prophetic words.

But Justices Alito and Thomas have now, with piercing clarity, levied a full indictment against Obergefell. Make no mistake, these two justices were drawing a line in the sand. In the Constitution, you will find a clear protection of religious liberty—you will not, however, locate a right to same-sex marriage. Yet, in 2015, the Court invented a set of rights nowhere enumerated in our nation’s governing document that has fostered an unavoidable collision between the LGBTQ agenda and religious freedom.

Their statement, as expected, received backlash from the left. Yale Law School professor William Eskridge said, “It is alarming that there are justices on the Supreme Court who want to overrule Obergefell, which is a precedent the Court has reaffirmed and which hundreds of thousands of couples have relied on to seal their unions and matrimony.” The Guardian, a liberal newspaper out of London, cited attorney Chase Strangio with the American Civil Liberties Union, who argued that stare decisis—the judicial principle of applying precedent—“will not protect even recently decided cases. The brazenness of the rightward direction of the court is a threat to even the most basic expectation of legal protection.”

We dare not miss Strangio’s argument: Even if a case were decided incorrectly and stood on no Constitutional foundation, it should stand. After all, it has now created a right upon which some Americans depend. Never mind the consequences to religious liberty. Never mind our Constitutional order. All must be subservient to the newly invented sexual liberties.

This collision will be on full display this Supreme Court term, especially in the case involving a Catholic charity in Philadelphia that has been a leader in foster care and adoption. Given Catholic teachings, the charity will not consider same-sex couple applicants for their foster care and adoptive services. According to the city of Philadelphia, the Catholic organization must choose between continuing their ministry or giving up their convictions concerning same-sex couples.

This is a massive case with enormous consequences—and it is, predictably, yet another consequence of Obergefell. Moreover, as Justices Alito and Thomas argued, the quagmire created by Obergefell will only be resolved by the Supreme Court, which makes the identity of the nine justices absolutely crucial.

For constitutional conservatives, the successful and speedy confirmation of Judge Amy Coney Barrett remains one of the most clarifying imperatives of our time.

And her nomination, of course, comes under the shadow of looming Presidential election where the White House and especially the United States Senate are up for grabs. Elections have consequences—2020 will have a great deal to do about the future of the Supreme Court and, by extension, the future of religious freedom and the American commitment to ordered liberty and constitutional self-government.