How the Supreme Court may make same-sex marriage into second-class marriage

The justices don't even have to overturn Obergefell. And the wheels are in motion.

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On Friday, the Texas Supreme Court decided to take up the case of a Texas justice of the peace who was sanctioned because she refused to marry same-sex couples based on her religious beliefs—and she’s planning to take her case all the way to the U.S. Supreme Court.

Wait, you must be asking yourself, Haven’t we been here before?

Yep.

Kim Davis, you’ll remember, is the infamous Rowan County, Kentucky, clerk who refused to issue marriage licenses to gay and lesbian couples back in 2015 based on her religious beliefs after the Supreme Court handed down the Obergefell marriage equality decision that year. Davis was sued and ordered by a federal judge to begin issuing licenses.

Davis still wouldn’t issue licenses and was eventually jailed for contempt of court. She was released after five days—only after she agreed that she wouldn’t interfere, as she had been, with deputy clerks granting licenses. She appealed to the U.S. Supreme Court, which turned away her appeal in 2020.

Lots of people thought that settled that. And perhaps it did.

But perhaps not.

Donald Trump, of course, remade the Supreme Court, which took a radical shift to the right. And Justice Clarence Thomas may have foreshadowed what’s to come regarding granting government officials the right to discriminate in the scathing statement he wrote when the high court denied Kim Davis’ appeal in 2020, a statement that was joined by Justice Samuel Alito:

As a result of this Court’s alteration of the Constitution, Davis found herself with a choice between her religious beliefs and her job…

..Davis may have been one of the first victims in this Court’s cavalier treatment of religion in its Obergefell decision, but she won’t be the last.

..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 only it can fix.

Even while issuing this statement, Thomas, with Alito, actually joined the rest of the court in turning away the case, but Thomas pointed to the case not being “clearly presented” as the reason for that—even as he underscored the “important questions” it raised about Obergefell. Thomas and Alito were letting it be known that this was just a case of bad lawyering, and that a better-presented case could make it.

So it was clear where these two would take things if they got the chance again in the future, even though their argument was absurd and hypocritical. Government employees’ religious beliefs haven’t entitled them to discriminate against groups of people. In the case of clerks or justices of the peace, surely they couldn’t use religion to turn away an interracial marriage or a Jewish couple, even if it they believed it went against the tenets of their particular faith.

Though the decision to turn away Davis’ appeal came in 2020, shortly before Trump’s last appointment, Amy Coney Barrett, joined the court, the court has since opened the door widely to revisiting these issues all over again.

And, remember, Thomas, in his statement siding with Davis, alluded to the Davis case not being “clearly presented” as the reason he and Alito (and maybe others among the conservatives) turned away the case.

The current Supreme Court—with Barrett, and Trump’s other picks, Neil Gorsuch and Brett Kavanaugh—has more recently ruled in favor of blatant discrimination, all in the name of religious freedom. And Thomas and Alito may now have the chance to “fix” yet another “problem” they claim the court created.

The Waco, Texas, justice of the peace at the center of the current case, Dianne Hensley, refused to perform same-sex marriages in 2019 based on her religious beliefs as a Christian. She was formally sanctioned by the Texas Commission on Judicial Conduct. She filed a lawsuit, arguing her rights were violated under the Texas Religious Restoration Freedom Act. The case was dismissed by a state district judge, and that decision was upheld upon appeal. Hensley then appealed to the very right-wing Texas Supreme Court, and it decided on Friday to take her case.

Hensley’s lawyers at the First Liberty Institute, a Christian nationalist law firm with ties to corrupt, viciously anti-LGBTQ Texas attorney general Ken Paxton, are using the U.S. Supreme Court’s 6-3 decision last June in 303 Creative LLC v. Elenis, in which the court’s conservatives ruled that a Colorado web designer can’t be forced to serve same-sex couples seeking wedding websites based on her religious beliefs—even though no same-sex couple had actually sought the web designer’s services. Per the Texas Tribune:

Justin Butterfield, an attorney for Hensley at First Liberty Institute, has maintained throughout the lawsuit that religious liberty is Hensley’s right as a citizen.

“303 Creative affirmed that religious liberty is not a second-class right in America,” Butterfield wrote in an email to The Texas Tribune. “We look forward to vindicating Judge Hensley’s rights in the Texas Supreme Court.”

Dale Carpenter, chair of constitutional law at Southern Methodist University’s Dedman School of Law, told the Tribune he believes this is one of a “slew” of cases that will try to expand the reach of 303 Creative. He seems skeptical that that will happen, telling the Tribune that the Colorado case has little to do with Hensley’s case because the 303 Creative decision applies to private businesses, while Hensley is a government official.

But will that matter to the Christian nationalist-friendly Texas Supreme Court and ultimately the current U.S. Supreme Court?

We’ve seen this Supreme Court spin out whatever it wants on a whole variety of issues, from affirmative action and abortion rights to student loan debt and immigration. This court’s motto is: Where there’s a will, there’s a way.

And we know there’s a will because Thomas told us there is—with Alito joining him—in the statement he issued in 2020 regarding the Kim Davis case.

“If Judge Hensley were to actually win this case, it would basically gut a good portion of marriage equality that we got,” Ash Hall, an ACLU of Texas policy and advocacy strategist, told the Tribune. “Your ability to get married then would be dependent on your ZIP code and kind of what resources were around you.”

Hall said the ACLU isn’t surprised by Hensley using the 303 Creative case either, and has expected such lawsuits would be coming down the pike. No one can predict what the Supreme Court will do. So we shouldn't be shocked if the court expands its abominable decision in 303 Creative to allow even government employees to treat gay and lesbian couples as second-class citizens.