BJC’s Tyler: Statement from Justices Thomas and Alito on religious liberty and same-sex marriage makes tensions worse

by | Oct 8, 2020

This week, the U.S. Supreme Court denied review in hundreds of cases. The denial of cert in Davis v. Ermold among that group was not a surprise. You will remember the case: Kim Davis, a clerk in the state of Kentucky, refused to issue marriage licenses to same-sex couples, citing her religious beliefs. This was despite the Court’s 2015 ruling in Obergefell, which found state laws prohibiting such marriages to be unconstitutional.

Her case went back to the Supreme Court to ask for review – this is after both the trial and appeals courts rejected her argument that she is entitled to qualified immunity from monetary damages in civil suits brought against her.

The Supreme Court declined to hear her case, but that’s not why it’s back in the news. A statement issued by Justice Clarence Thomas and joined by Justice Samuel Alito accompanying the rejection is making headlines. While agreeing with the denial to hear this case, Thomas took the opportunity to bash the Court’s Obergefell ruling as “ruinous” to religious liberty. “Due to Obergefell,” he wrote, “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society…”

As BJC Executive Director Amanda Tyler explained in response: exaggerated, dire warnings only increase the tensions between religious liberty and other important civil rights. In a series of tweets, she wrote:

There are serious and difficult questions about how best to protect religious freedom for all as Americans hold different religious views related to human sexuality. But this hyperbolic statement from Justices Thomas and Alito only makes this tension worse.


As Holly Hollman wrote at the time: “While religious liberty rights were not the central subject of the case, the Obergefell majority respectfully acknowledged that some deeply held and long-standing religious beliefs oppose same-sex marriage.”

The tension Tyler references is both real and sincere. At the same time, as she suggests, moving forward will call for voices of healing, understanding, accommodation and compromise, not divisive fear-mongering. Religious liberty can and must be protected while still being mindful of the impact those protections may have on the rights and liberties of others. As BJC General Counsel Holly Hollman said in 2019, “conflicts between LGBTQ rights and religious objections to same-sex marriage have had a severe impact on the public’s understanding of and support for religious liberty.”

For more on this topic, see BJC’s resources on same-sex marriage and religious liberty.