The Obergefell case, recognizing the right to marriage of same sex couples, has had "ruinous consequences" for religious liberty, Justice Clarence Thomas, joined by Samuel Alito, has warned in a statement on the denial of certiorari in the case of Kentucky Clerk Jean Davis.
The two deplore the decision because the matter should have been left to the elected branches of government on a state by state basis. Instead those who, like orthodox Catholics, embrace the Catechism which, despite Pope Francis softer stand, still labels homosexuality as "intrinsically disordered", may be treated as bigots by unelected judges.
Thomas and Alito may feel emboldened by the expected arrival of Amy Coney Barrett. She has taken a similar tack in dissent approving Trump administration policies like the "public charge" rule barring indigent immigrants. Chief Justice Roberts too dissented from the Obergefell decision so Barrett, a Catholic pentecostal, will make four votes. That leave Brett Kavanaugh to provide the fifth vote to overturn the uncertainly founded Obergefell opinion of his protector and sponsor Anthony Kennedy.
The Thomas Alito statement portends much posturing about precedent, reliance, state sovereignty and deference to the popular will. It also poses a strong challenge to the one nation idea that equal protection means the same thing in Alabama as it does in Massachusetts.
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