WASHINGTON—Derogation of same-sex marriage by right-wing Supreme Court Justice Samuel Alito in a statement he made this week regarding a Missouri court case underlines the danger that the High Court is preparing to end same sex marriage, the second time it would reverse a constitutional right in the nation.
Making matters worse, if Trump is elected this year he could veto any congressional attempt to reverse such a disastrous ruling of the Court by passing a law guaranteeing same sex marriage rights.
Justice Alito sharply criticized same-sex marriage in a February 20 statement on a Missouri case where a potential juror challenged her summary rejection from serving because of religious beliefs that homosexuality is a sin. The plaintiff in the case was a lesbian.
The justice’s statement means three current justices are on the record against same-sex marriage. If a case challenging it comes their way, and they get one more vote, the court can take it up. If the three get two more votes, that’s a majority on the nine-justice court and they can end legal same-sex marriage.
Justice Alito would put religious rights first, ahead of everything else, including same-sex marriage.
“When a court, a quintessential state actor, finds that a person is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights,” he wrote. “I am concerned the lower court’s reasoning may spread and may be a foretaste of things to come.”
The Missouri Court of Appeals “reasoned that a person who still holds traditional religious views on questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian,” Justice Alito wrote. “That exemplifies the danger I anticipated” when the justices ruled in 2015, in Obergefell v. Hodges, that same-sex marriage is legal.
Justice Alito’s “danger” is that “Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government.” The justices “made it clear” in 2015 “the decision should not be used in that way, but I am afraid this admonition is not being heeded by our society.”
Obergefell was decided 5-4. Besides Justice Alito, Chief Justice John Roberts and Justice Clarence Thomas also voted against same-sex marriage, and all three wrote strong dissents then. So did the fourth justice, the late Antonin Scalia.
Justice Thomas was even more forceful against same-sex marriage—and other aspects of current society involving sex, such as birth control–when joining the later right-wing court majority that outlawed the federal constitutional right to abortion. Justice Alito wrote that majority ruling, too.
The three are a far cry, judicially, from retired Justice Anthony Kennedy, then court’s “swing vote,” who wrote the majority opinion in Obergefell.
“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here,” Justice Kennedy wrote.
“But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State” i.e. the government “on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.
“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Justice Kennedy stated.
Yet to be heard from are the three Donald Trump-named right-wing justices on the High Court: Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh. Justice Barrett came the closest, in a convoluted statement during her 2020 Senate confirmation hearings—during which she used a phrase, “sexual preference,” that denigrates LGBTQ people.
Barrett, then an appellate court judge, ducked the question about how she would vote on same-sex marriage. But she told Sen. Dianne Feinstein, D-Calif.., that she “never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference.”
On the High Court bench, Justice Kavanaugh dropped a hint that he, too, could overrule same-sex marriage. In oral argument on the abortion rights case, he cited same-sex marriage rulings, including Obergefell, which overturned prior precedents—and said the justices could do so again.
“If we think prior precedents are seriously wrong, why then doesn’t the history of this court’s practice with respect to those cases tell us the right answer is actually a return to the position of neutrality and—and not stick with those precedents in the same way that all those other cases didn’t?” he asked.
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