As the Republican majority in the U.S. Senate prepared this week to push a third Donald Trump appointee onto the Supreme Court, the court itself provided a suggestion of what that might mean.
The court opened its fall term on Monday by, among other things, declining to hear the appeal of Kim Davis, the former county clerk of Rowan County, Kentucky, who in 2015 drew national attention by refusing to issue marriage licenses in protest of the court’s decision in Obergefell vs Hodges, which legalized same-sex marriages nationwide.
But in joining the other six surviving justices in rebuffing Davis — who is being sued by two couples to whom she denied a license — Justices Clarence Thomas and Samuel Alito decried the Obergefell decision. Their concurrence can be viewed as an invitation to opponents of same-sex marriage to bring forth a new challenge to that ruling.
Thomas and Alito were in the minority in Obergefell, but they can count. Two members of the narrow 5-4 majority in that case, Ruth Bader Ginsburg and Anthony Kennedy (who wrote the majority opinion), are gone. The pending elevation of Amy Comey Barrett may suffice to turn the Obergefell ruling around, even if Chief Justice John Roberts — also a member of the Obergefell minority but who frequently seeks to hold the court above the partisan fray — opts to uphold the 2015 precedent.
Overturning Obergefell would not directly affect Minnesota; this state legalized same-sex marriage legislatively in 2013. It would, however, return the nation to the state-by-state patchwork of recognition that existed before the ruling, with marriages recognized in some states and not in others.
The Census Bureau reported last year that there were more than 560,000 same-sex married couples in the United States. We see no need to cast a legal cloud over those unions. The institution of marriage has not been damaged by the Obergefell ruling any more than it was by Loving vs. Virginia, the 1967 ruling that overturned state bans on interracial marriage.
Thomas and Alito may be looking for a case that offers a religious liberty pretext to overturn Obergefell, but the court would do better to view the matter as settled.