The U.S. Supreme Court on Monday rejected an appeal from Kim Davis, the former Kentucky county clerk who gained national attention five years ago when she cited her religious beliefs in refusing to issue marriage licenses to same-sex couples.
Although the court was apparently unanimous in refusing to hear her appeal, two of the conservative justices said the 2015 ruling making same-sex marriage the law of the land amounted to a "cavalier treatment of religion." Davis "may have been one of the first victims" of the decision, "but she will not be the last," wrote Clarence Thomas for himself and Samuel Alito.
After the marriage ruling, gay couples sued Davis for refusing to issue them marriage licenses, and she was briefly jailed for contempt when she continued to refuse after a court ordered her to grant them. Kentucky later changed state law so that marriage licenses were no longer issued in the name of the county clerk.
In defending herself in court, Davis argued that as a government employee, she was immune from lawsuits involving her official duties. The couples failed to claim any constitutional right to receive a marriage license from any particular official, she said. Her lawyers told the Supreme Court that the case was about "whether the law forces an all-or-nothing choice between same-sex marriage on the one hand and religious liberty on the other."
But lawyers for the gay couples said the issue was much more narrow — whether government officials have immunity when they act in a way that they know violates the law.
"No reasonable officer would have assumed that state law allowed her to grant herself an exemption from her duty to issue marriage licenses," they argued.
Thomas and Alito, who dissented from the court's 5-4 marriage ruling, said it "enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss."
The marriage ruling gave a privilege to a "novel constitutional right over the religious liberty interests protected by the First Amendment," they said. "The court has created a problem that only it can fix."
Next month, the Supreme Court will hear a case from Philadelphia that presents the tension between religious liberty and anti-discrimination laws. A Catholic charity is challenging the city's decision barring it from participating in a program that places children in foster care because the charity said it will not place them with same-sex couples.
The American Civil Liberties Union condemned the comments by Thomas and Alito.
“It is appalling that five years after the historic [gay marriage ruling], two justices still consider same-sex couples less worthy of marriage than other couples," said James Esseks, director of the group’s LGBT and HIV Project. "When you do a job on behalf of the government — as an employee or a contractor — there is no license to discriminate or turn people away because they do not meet religious criteria. Our government could not function if everyone doing the government's business got to pick their own rules.”
Esseks said the same issue is at stake in the Philadelphia case: “We will fight against any attempts to open the door to legalized discrimination against LGBTQ people.”