On Oct. 5, Supreme Court Justice Clarence Thomas showed how conservative justices could use religion to take away people’s fundamental rights. With Justice Samuel Alito in agreement, Justice Thomas took the unusual step of issuing a statement about a case even though he agreed with the court’s refusal not to take it. And he did so to call for the demise of the court’s marriage equality decision in Obergefell v. Hodges.
The case involved Kim Davis, a county clerk in Kentucky, who after the Obergefell decision refused to issue marriage licenses to same sex couples claiming doing so violated her religious rights. Justice Thomas argued that the right of same sex couples to marry threatens “the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman.” He complained that the marriage equality case portrayed people with contrary religious beliefs as having “a bigoted worldview.”
His view couldn’t be more wrong. The Obergefell ruling does not require anyone to act against their religious beliefs. Ms. Davis was not required to marry someone of the same sex, nor was she ordered to personally endorse same sex marriage. She merely had to follow her oath of office and obey state law by issuing the marriage licenses.
Mr. Thomas, Mr. Alito, and Supreme Court Justice nominee Amy Coney Barrett twist the right to religious exercise into a license to discriminate. Under this view, a professor at a state university who believes God wants women to devote themselves to home life could refuse to teach female students. Someone like Ms. Davis could refuse to grant a marriage license to an interracial couple. After all, before the court intervened, the trial judge who sentenced the Lovings for their interracial marriage in Virginia claimed, “Almighty God created the races … and he placed them on separate continents … the fact that he separated the races shows that he did not intend for the races to mix.”
Religion has long been used by some to justify racism, the subordination of women and the persecution of gay and lesbian Americans, such as in 1873 when the Supreme Court upheld a law forbidding women from becoming lawyers. According to “divine ordinance … the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother,” Justice Joseph Bradley argued.
In the 1986 Supreme Court case that upheld Georgia’s law allowing prison sentences of up to 20 years for same-sex sexual relations, Chief Justice Warren Burger claimed “Judeo-Christian” teachings condemned same-sex relations as a “crime against nature … an offense of deeper malignity than rape.” Tellingly, when the court reversed this decision 17 years later, Justice Thomas and Judge Barrett’s mentor Justice Scalia dissented. In his statement last week, Justice Thomas complained that the court’s ruling on same sex marriage unfairly portrayed those with religious objections as having an “anti-homosexual animus.” If it were up to him, same sex couples could still be locked up as felons.
As a self-proclaimed originalist, Judge Barrett is likely to agree with her mentor, Justice Antonin Scalia, that the Equal Protection Clause does not prohibit gender discrimination directly threatening Justice Ruth Bader Ginsburg’s heroic legacy. She signed onto a newspaper ad in 2006 that called for Roe v. Wade to be overturned and said the decision was barbaric. And make no mistake Roe v. Wade protects gender equality. As Justice Ginsburg said in her 1993 confirmation hearings, when the government decides whether a woman must bear a child, that woman “is being treated as less than a fully adult human responsible for her own choices.” In a 2007 Supreme Court decision, Ginsburg explained that these cases “center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
In 2012, Judge Barrett signed a letter arguing that by requiring coverage for contraception the Affordable Care Act committed “a grave violation of religious freedom and cannot stand.” Then, in 2015 she signed a public letter endorsing the Catholic Church’s teachings on the “meaning of human sexuality, the significance of sexual difference … and on marriage and family founded on the indissoluble commitment of a man and a woman.” She has been a faculty member for the Blackstone Legal Fellowship run by a group that according to the Southern Poverty Law Center wants to criminalize homosexuality and endorses the sterilization of trans people. The Fellowship seeks to establish a “distinctly Christian worldview in every area of law.”
Of course, Judge Barrett has every right to hold and cherish her religious beliefs. It is her willingness to impose outdated notions of equality and liberty in her political life and jurisprudence that disqualifies her for confirmation. Judge Barrett’s nomination threatens the equal dignity of same sex families, the hard won right to gender equality, and the right to be left alone in the most intimate choices we make. These rights must be defended. As Justice Ginsburg explained, “A person’s right to free exercise of her religion must be kept in harmony with the rights of her fellow citizens.”
Jeffrey Davis (email@example.com) is a professor in the department of political science at the University of Maryland Baltimore County. Twitter: @sec1350.