“Happy First Monday of October and Start of the SCOTUS Term, Everybody!”

"Happy First Monday of October and Start of the SCOTUS Term, Everybody!"
Outside the Supreme Court in October 2019 as three cases involving LGBTQ employment rights were argued at the Court. (Victoria Pickering / Flickr)

Yesterday marked the first day of the new Supreme Court term—and it’s already off to a contentious start.

On Monday, the Supreme Court declined to hear the case of Kentucky clerk Kim Davis, who gained national attention in 2015 for refusing to issue marriage licenses to gay couples.

Often, when the Supreme Court declines to take a case, its denial sends a message that a majority of the Court believes the issue has been decided correctly by the lower courts.

After refusing to issue the marriage licenses in 2015, Davis was sued and briefly jailed for defying a judge’s order to issue them. In her case, Davis sought to have the charges against her dismissed under the doctrine of qualified immunity, which “shields government officials from being held personally liable for constitutional violations.”

After the U.S. Court of Appeals for the 6th Circuit denied this claim of qualified immunity, Davis then petitioned for a writ of certiorari—a request for her case to be taken up by SCOTUS. At least four justices need to agree to hear the case for it to be heard; Davis’s case was denied. A shut and closed case, right? Not quite.

Included in the Court’s order declining the case was an opinion authored by Justices Thomas and Alito, in which they criticized the Court’s initial decision in Obergefell v. Hodges (which recently celebrated its 5th anniversary), and ended with what many read as the Court’s signaling it may move to overturn the historic decision—and roll back national marriage equality.

While both justices concurred with the case’s denial, they did so seemingly because Davis’s case did not present a “clean” enough argument to overturn Obergefell:

“This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari.”

Davis’s claim was not a direct challenge of Obergefell, but rather a claim that her First Amendment free exercise rights had been violated. In their concurrence, Thomas and Alito positioned Obergefell as a direct threat to these rights:

“Davis may have been one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last. Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws.”

The justices ended their opinion by stating that until the “problem” created by Obergefell around First Amendment interests is addressed, the decision would continue to have “ruinous consequences for religious liberty.”

ACLU lawyer Chase Strangio, who helped secure a major victory for LGBTQ rights this summer in Bostock, elaborated:


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Many are pessimistic as to what the nomination of Amy Coney Barrett could spell for LGBTQ rights, if she were to be confirmed. Barrett’s nomination to the 7th Circuit was widely opposed by LGBTQ advocacy groups due to her ties to right-wing anti-LGBTQ organizations such as the Alliance Defending Freedom (a group which has recently been crusading against trans rights, and is designated as a hate group by the Southern Poverty Law Center), and she has a track record of vocally opposing LGBTQ rights.

The court is set to hear several contentious cases this term, including a challenge to the Affordable Care Act in California v. Texas on November 10—just a week after the election. The court will also hear several cases related to LGBTQ rights, including Fulton v. City of Philadelphia, which deals with the City of Philadelphia’s decision to end a foster care services contract with a Catholic agency that refused to work with gay couples.

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About

Oliver Haug is an editorial intern with Ms. Magazine and a recent graduate of Smith college. Their writing has previously appeared in Autostraddle and the New York Times' newsletter "The Edit." You can read more of their work at oliverhaug.contently.com, and follow them on twitter here.