Conservatives still think that so long as they patiently play the judicial supremacy game, they can garner enough votes on the court to overturn recent consequential opinions altering the Constitution and society, such as the decisions creating "right" to an abortion, a gay marriage, or transgender accommodations.
Monday's decision on a gay marriage case demonstrates that there are likely no more than two authentic originalists on the court, jurists who are willing to reverse existing bad decisions, especially when they are wildly popular with the cultural elite.
When the Supreme Court discovered in the 2015 Obergefell case that the 14th Amendment, which was written at a time when homosexuality was criminalized, requires states to offer marriage licenses to those in same-sex relationships, the dissenting voices warned about the upcoming clash with religious liberty. Clearly, five justices on the court today would have never signed off on that opinion. Indeed, Chief Justice John Roberts wrote the main dissent. But as we have seen so often, once the decision is made, Justice Clarence Thomas, and sometimes Justice Samuel Alito, stand alone in the desire to reverse course.
Today's case stems from the July 2015 district court decision in Kentucky that forced Rowan County Clerk Kim Davis to issue marriage licenses to same-sex couples. Davis had been county clerk for 30 years and was following state law, which was reaffirmed by 75% of state voters in 2004.
Just several years prior, in the Windsor case, then-Justice Anthony Kennedy, cited prior precedent that "states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce."
However, thanks to Obergefell, the district judge ordered Kim Davis to spend time in jail!
Which leads to Monday's court order in Kim Davis v. David Ermold. Several same-sex couples are now suing her years later for "damages." Davis appealed to the Supreme Court to dismiss the lawsuit under the principle of qualified immunity for a government official. The Supreme Court unanimously agreed to deny certiorari in this case because they did not agree with her argument of qualified immunity. However, Justice Thomas wrote an important concurrence regarding the underlying issue.
"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 complained how judicial mandates of gay marriage prevented states from making accommodations for religious liberty. He concluded by noting that although this case doesn't give them a proper avenue to reverse Obergefell, it needs to be revisited:
"This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari. 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." 576 U. S., at 734 (THOMAS, J., dissenting)."
Justice Alito was the only colleague to join Thomas's concurrence. What about Roberts, Neil Gorsuch, and Brett Kavanaugh? Why does Thomas so often stand alone in voicing outrage over the most insane and consequential contortions of the Constitution?
Roberts has already shown that he has made peace with Obergefell. Like many breaches in the Constitution that he originally opposed, Roberts went on to codify and expand Obergefell in a later case. In the 2017 Pavan v. Smith case, the Supreme Court said that lesbian couples in which one woman is impregnated through artificial insemination are not only entitled to have both their names on the child's birth certificate, the certificate must be as if the "husband" of the duo is the actual biological "father" of the child.
At the time, Roberts, despite having written the main dissent in Obergefell, joined the other five liberals in ruling that Obergefell demands that lesbian couples be treated the same as couples who could actually procreate and that they must be issued birth certificates as if they were the biological parents. Thus, they are decreeing that states must lie about biology and act as if two women or two men can procreate.
Unfortunately, we have not seen any proclivity from Kavanaugh or Gorsuch to overturn passed erroneous rulings on social issues. In fact, Gorsuch gave us the Obergefell of transgenderism last term in the Bostock case.
This, along with other evidence from this past court term, demonstrates that, at best, we currently have two votes to overturn cases like Roe, Obergefell, and Bostock. Even if we hit a home run with Amy Coney Barrett, that would only bring the tally to three. Thus, if liberals are prepared to eschew their obsession with judicial supremacy under the false notion that conservatives will eventually steer that ship, we should shake on it. It's time to let the states, not the federal courts, decide societal questions.
This story has been updated.