How the Supreme Court could make same-sex marriage into second-class marriage

23 October 2023

Court delivers brutal ruling against Kim Davis — the Kentucky clerk who blocked same-sex marriages

On Friday, the Texas Supreme Court decided to take up the case of a Texas justice of the peace who was sanctioned because she refused to marry same-sex couples based on her religious beliefs—and she’s planning to take her case all the way to the U.S. Supreme Court.

Wait, you must be asking yourself, Haven’t we been here before?

Yep.

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Kim Davis, you’ll remember, is the infamous Rowan County, Kentucky, clerk who refused to issue marriage licenses to gay and lesbian couples back in 2015 based on her religious beliefs after the Supreme Court handed down the Obergefell marriage equality decision that year. Davis was sued and ordered by a federal judge to begin issuing licenses. She appealed to the U.S. Supreme Court, which turned away her appeal.

Davis still wouldn’t issue licenses and was eventually jailed for contempt of court. She was released after five days—only after she agreed that she wouldn’t interfere with deputy clerks granting licenses even as she took her name off of them.

Lots of people thought that settled that. And perhaps it did.

But perhaps not.

Donald Trump, of course, remade the Supreme Court, which took a radical shift to the right. And Justice Clarence Thomas may have foreshadowed what’s to come regarding granting government officials the right to discriminate in the scathing statement he wrote when the high court denied Kim Davis’ appeal in 2015, a statement that was joined by Justice Samuel Alito:

As a result of this Court’s alteration of the Constitution, Davis found herself with a choice between her religious beliefs and her job…
..Davis may have been one of the first victims in this Court’s cavalier treatment of religion in its Obergefell decision, but she won’t be the last.
..By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem only it can fix.

So it was clear in 2015 where these two would take things if they got the chance—that is, if fellow extremists joined them on the court down the road—even though their argument was absurd and hypocritical. Government employees’ religious beliefs haven’t entitled them to discriminate against groups of people. In the case of clerks issuing marriage licenses, surely they couldn’t use religion to turn away an interracial marriage or a Jewish couple, even if it they believed it went against the tenets of their particular faith.

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Fast forward to 2023, and that is not so clear anymore. The current Supreme Court—with Justices Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh, put on the court by Trump—has ruled in favor of blatant discrimination, all in the name of religious freedom. And Thomas and Alito may now have the chance to “fix” yet another “problem” they claim the court created.

The Waco, Texas, justice of the peace at the center of the current case, Dianne Hensley, refused to perform same-sex marriages in 2019 based on her religious beliefs as a Christian. She was formally sanctioned by the Texas Commission on Judicial Conduct. She filed a lawsuit, arguing her rights were violated under the Texas Religious Restoration Freedom Act. The case was dismissed by a state district judge, and that decision was upheld upon appeal. Hensley then appealed to the very right-wing Texas Supreme Court, and it decided on Friday to take her case.

Hensley’s lawyers at the First Liberty Institute, a Christian nationalist law firm with ties to corrupt, viciously anti-LGBTQ Texas attorney general Ken Paxton, are using the U.S. Supreme Court’s 6-3 decision last June in 303 Creative LLC v. Elenis, in which the court’s conservatives ruled that a Colorado web designer can’t be forced to serve same-sex couples seeking wedding websites based on her religious beliefs—even though no same-sex couple had actually sought the web designer’s services. Per the Texas Tribune:

Justin Butterfield, an attorney for Hensley at First Liberty Institute, has maintained throughout the lawsuit that religious liberty is Hensley’s right as a citizen.
“303 Creative affirmed that religious liberty is not a second-class right in America,” Butterfield wrote in an email to The Texas Tribune. “We look forward to vindicating Judge Hensley’s rights in the Texas Supreme Court.”

Dale Carpenter, chair of constitutional law at Southern Methodist University’s Dedman School of Law, told the Tribune he believes this is one of a “slew” of cases that will try to expand the reach of 303 Creative. He seems skeptical that that will happen, telling the Tribune that the Colorado case has little to do with Hensley’s case because the 303 Creative decision applies to private businesses, while Hensley is a government official.

But will that matter to the Christian nationalist-friendly Texas Supreme Court and ultimately the current U.S. Supreme Court?

We’ve seen this Supreme Court spin out whatever it wants on a whole variety of issues, from affirmative action and abortion rights to student loan debt and immigration. This court’s motto is: Where there’s a will, there’s a way.

And we know there’s a will because Thomas told us there is—with Alito joining him—in the statement he issued in 2015 regarding Kim Davis.

“If Judge Hensley were to actually win this case, it would basically gut a good portion of marriage equality that we got,” Ash Hall, an ACLU of Texas policy and advocacy strategist, told the Tribune. “Your ability to get married then would be dependent on your ZIP code and kind of what resources were around you.”

Hall said the ACLU isn’t surprised by Hensley using the 303 Creative case either, and has expected such lawsuits would be coming down the pike. No one can predict what the Supreme Court will do. So we shouldn't be shocked if the court expands its abominable decision in 303 Creative to allow even government employees to treat gay and lesbian couples as second-class citizens.

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