Celebrate the Court's Rejection of Kim Davis’s Effort to Overturn Marriage Equality But Do Not Let Your Guard Down
The Roberts Court Chose Not to Cause Furor by Revisiting Obergefell Before the Midterms, Instead Focuses on Allowing Republicans to Rig Maps
Americans across the nation celebrated this week when the Roberts Court rejected a petition filed by Kim Davis, the infamous Kentucky county clerk who refused to issue marriage certificates to David Ermold and David Moore, and other gay couples. She had asked the nation’s highest court to overturn Obergefell v. Hodges, which recognizes the “fundamental right to marry” for same-sex couples. In an unsigned order, the Court declined to take this challenge up… for now.
I’m relieved, too, because the freedom to marry the person you love and who loves you back is one of the most important and meaningful blessings of liberty one can enjoy in the pursuit of happiness. And, no one should be able to use their public office, as a county clerk or in any other role, to impose their personal religious beliefs on you.
We must pause and celebrate the moments when freedom prevails, especially in these difficult days of a corrupt presidential administration, a despoiled Congress, and a captured high court stocked with hand-picked partisan operatives wielding the judicial power to recklessly unleash Donald Trump from the bounds of law.
We can exhale, for now. The lower court was right to find that Davis violated the civil rights of Ermold and Moore, and the jury was right to award damages of $100,000 plus attorneys fees. The U.S. Court of Appeals for the Sixth Circuit was right to uphold that verdict in a unanimous ruling by three judges who were appointed by Donald Trump, George W. Bush, and Joe Biden. And the Roberts Court was right to uphold those rulings.
But….
We are not out of the woods.
In fact, we are deep in the forest on a long, dark night, and marriage equality still remains at real risk.
Davis’s lawyers at a litigation group that calls itself “Liberty Counsel” have quite a history. They have assailed marriage equality, defended the torturous practice of conversion therapy and, among other things, tried to subject women of the 21st century to 19th century abortion bans. The group, which has had close ties to anti-gay televangelist Jerry Falwell, Sr. and Liberty University, has been designated as a “hate group” by the Southern Poverty Law Center.
Their brief to the Court opened with citing Chief Justice John Roberts’ dissent in Obergefell, along with the dissent by Clarence Thomas. The latter recently opined that the Court should just reverse any legal precedent he/they dislike, and urged that Obergefell be reversed in his concurrence in the Dobbs case overturning Roe v. Wade.
Davis’s lawyers clearly believed they had the numbers to reverse Obergefell. That landmark and compelling 5-4 ruling was written by Justice Anthony Kennedy in 2015, with Roberts, Thomas, Alito (and Scalia) opposing gay marriage. That was before anti-gay marriage and anti-abortion operative Leonard Leo and his billionaire backers helped steal two vacant seats on the Supreme Court and install Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to get a 6-3 majority. It is fair to say Leo now has the votes to get his personal beliefs imposed as law by the Roberts Court, but the real question here is timing.
Roberts has shown just how patient and calculating he can be, and “jolting” Americans who support marriage equality into action before the midterms would not be politically prudent. He is already setting the table to aid Trump and Republicans in pre-rigging the midterms by signaling that the Republican appointees are prepared to strike down Section 2 of the Voting Rights Act, which, as I detail in my new book, Roberts cut his teeth targeting as a Reagan revolutionary.
The Court has discretion to decide when it will take up and then take down Obergefell. Will it be in 2027? 2029? To me, the only question is when, not if.
A Call to Action
If you’re an American who loves freedom, the time to begin organizing is now. We can’t just wait around and keep hoping the Roberts Court will do the right thing. We need to take proactive steps for ballot measures and other actions–like repealing any criminalization laws still on the books targeting LGBTQ Americans.
After the Dobbs ruling, the unprecedented creation of presidential immunity, and the two dozen cases this year where the Roberts six blocked lower courts from well-founded restraining orders, the mask has fallen. The arrogant Roberts Court is on a path of destruction. We cannot afford to be caught flat-footed, as many were after Dobbs, when ancient bans on abortion sprang back to life like zombies we had to suddenly battle all over again.
We the People must secure our rights in every state because we can no longer count on the nation’s highest court to protect our freedoms.
What I’m Reading:
The briefs in this case, especially the brief submitted by the Institute for Constitutional Advocacy and Protection (ICAP), which is worth reading in full.
The Declaration of Independence, with the 250th anniversary coming up soon.
My book, which includes a detailed discussion of John Roberts’ hostility toward marriage equality. Here is a brief excerpt:
“The widely respected conservative Judge Richard Posner called John Roberts’s objections in Obergefell “heartless” and utterly dis-mantled Roberts’s dissent. Posner observed,
Gratuitous interference in other people’s lives is bigotry. The fact that it is often religiously motivated does not make it less so. The United States is not a theocracy, and religious disapproval of harmless practices is not a proper basis for prohibiting such practices, especially if the practices are highly valued by their practitioners….
Posner also took aim at Roberts’s posturing as a historian:
The chief justice criticizes the majority for “order[ing] the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” We’re pretty sure we’re not any of the above….
The Carthaginians, by the way, also ritually sacrificed their children to the gods. Some San nomads have required that women be segregated when menstruating. And several Han Chinese emperors were bisexual or had male lovers. But, to Posner’s point, why should any of those examples be persuasive or binding on civil society in America, on the nontheocratic rules for a modern democracy contending with the meaning of liberty for its diversity of people?
The Roberts Court is enthralled with its power to impose the majority’s religious views on all Americans, without regard to our legal precedents.”
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