Justices Thomas, Alito stoke liberal fear by suggesting SCOTUS gay marriage ruling could be overturned

Conservative Supreme Court Justices Clarence Thomas and Samuel Alito on Monday excoriated the high court's 2015 Obergefell v. Hodges decision — which uniformly mandated that all states recognize same-sex marriages — characterizing it as an assault on religious liberty and suggesting that the ruling could be overturned in short order.

What did they say?

"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," Thomas wrote in a scathing statement, joined by Alito. "Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots ... in other words, [it] was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals."

Thomas wrote the court's denial to hear an appeal from former Kentucky County Clerk Kim Davis, who was sued after objecting to issuing same-sex marriage licenses in the state.

Even in denying to hear Davis' case, however, Thomas made sure to note that her petition "provides a stark reminder of the consequences of Obergefell." Consequences that he said were "created" by the court and that "only [the court] can fix."

"Until then," — that is, presumably, until the case is overturned by the court — "Obergefell will continue to have 'ruinous consequences for religious liberty,'" Thomas concluded.

Why does it matter?

The sharp words were especially notable given the Supreme Court's conservative transformation over the last four years.

Time noted in its report that "with Ginsburg's death and the retirement of Justice Anthony Kennedy in 2018, only three members of the majority in the gay marriage case remain: Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan."

Kennedy, a moderate, was replaced by Justice Brett Kavanaugh and President Trump has nominated Amy Coney Barrett to fill Ginsburg's position.

Should Barrett be confirmed, it would give conservatives a 6-3 majority on the court. It would likely be a true majority, too, even as Chief Justice John Roberts, who is traditionally regarded as a conservative justice, has shown a tendency at times to play the middle since Kennedy's retirement.

Liberals were outraged

In response to the statement, LGBT rights groups and others expressed outrage and concern.

Human Rights Campaign President Alphonso David said, "These comments made clear that the war on marriage equality, against the lives of same-sex couples, is alive and well" even as the court "hangs in the balance."

Jim Obergefell, a lead plaintiff in the 2015 case, said, "It is unthinkable that Alito, Thomas and others on the Supreme Court would want to take away that right and the dignity that comes along with it."

"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 to seal their unions in matrimony," Yale Law School professor William Eskridge added.