Last Monday, the United States Supreme Court declined to hear a case from Kim Davis, a former land clerk who refused to legalize same-sex marriage following the 2015 Supreme Court decision in the Obergefell v Hodges case to issue certificates for such marriages because of their religious objections to them. She was sued and even detained for this denial, and appealed her case.
Despite the fact that Judges Samuel Alito and Clarence Thomas agreed to the dismissal on the grounds that the case did not "cleanly" present the issues raised in the 2015 decision, they took this opportunity to issue a broadside Thomas-authored decision from 2015.
It is worth analyzing Alito and Thomas' compulsion to express their objections to same-sex marriage in our current cultural and political context precisely because denial of civil rights, particularly in the name of protecting religious freedoms, was at the fore for the Trump administration Agenda, led in particular by US Attorney General William Barr.
If we analyze the position of Alito and Thomas in this regard, we do not see patterns of free thinking or compliance with the constitution. Rather, we see a pattern of highly adverse thinking and behavior aimed at ignoring or even abolishing important civil rights laws and constitutional protection against discrimination for Americans.
Thomas, for example, begins by criticizing the 2015 decision that "the Court of Justice included a right to same-sex marriage in the fourteenth amendment, although this right is nowhere to be found in the text".
Interestingly, former Judge Antoni Scalia has always made a similar argument against the Equal Rights Amendment, claiming that the constitution does not provide provisions for equality between women.
However, the language of the 14th Amendment is pretty clear, including the clause:
“Also, no state may deprive a person of life, liberty or property without this being required by law. not deny anyone in their jurisdiction the same protection of the law. "
So unless we envision that LGBTQ people – and in the case of Scalia's reasoning, women – are not people, it is not clear how the Constitution does not grant women and LGBTQ people equal rights and legal protection.
Here we see prejudice and hatred that tarnishes the interpretation of the text. Does Thomas suggest that each legal right must be enumerated in the 14th Amendment, in order to interpret it as giving equal legal rights to every person simply because they are a person? That is the level of ridiculousness.
Equally ludicrous is Thomas's claim that Davis' First Amendment rights have been violated, as when he writes:
“By deciding to privilege a new kind of constitutional law over the interests of religious freedom expressly protected in the first amendment, and by doing this in an undemocratic manner, the Court of Justice has created a problem that only it can solve. Until then, Obergefell will continue to have "ruinous consequences for religious freedom".
Recall that Kim Davis worked in a public office where, among other things, she issued marriage certificates to those legally entitled to do so.
According to Thomas's argument, the first amendment would now give the right not only to speak out against laws that one dislikes, but also the sanction for violating them, even if that means violating the legally sanctioned civil rights of others.
That should seem like a pretty dangerous recast of the First Amendment – one on steroids.
In addition, Alito and Thomas' position appears to call into question the initial fitting rights of others.
Thomas, who represents himself and Alito, writes that the court's decision "allows courts and governments to brand as bigots religious followers who believe that marriage is between a man and a woman, thereby removing their religious freedom concerns can be dismissed much more easily. "
In this case, it sure sounds as if Alito and Thomas want to prevent courts and governments from labeling certain discriminatory practices as bigotry, as if the discriminatory practice is justified in a religious text or belief system and is no longer bigotry and discrimination. and one has no right to call it that in the language.
Indeed, Thomas writes: "Since Obergefell the parties have tried again and again to call people of good will bigots just because they refused to change their religious convictions in the wake of the prevailing orthodoxy."
Basically, Thomas argues that we may or may not judge people by goodwill and then judge their actions according to that judgment. Therefore, if someone is of goodwill, their acts of discrimination are of goodwill and cannot be called bigotry.
Why the source when bigotry and discrimination matter? It is of no consequence to the person who has been refused employment or refused a marriage license if the refusal of a right is based on goodwill, religious belief, or outright malice or hatred. But Thomas and Alito are ready to uphold the right to deny the rights of others if this is done with “good will”.
In fact, Thomas and Alito enable people's civil rights to be violated. Denial of these rights doesn't matter as long as it is done with goodwill.
Indeed, Thomas and Alito believe, “Davis may have been one of the first victims of this court's reckless treatment of religion in its Obergefell decision, but it will not be the last. Because of Obergefell, it is becoming increasingly difficult for those with sincere religious beliefs about marriage to participate in society without violating Obergefell and its implications for other anti-discrimination laws. "
I agree! This is how civil rights laws and the protection of the constitution should work – they should make it difficult for people to participate in society without violating them!
And they are more of a "gentleman" in terms of the right they want to give Davis and others in the name of religious freedom to violate people's otherwise protected civil rights.
Now it is clear: Thomas and Alito just don't like the law and want to make it easier for people who break it.
What we see in Trump's administration, particularly Barr, as I have written elsewhere, is the same: an attempt to deny civil rights just because they don't like these laws; They prefer white supremacy or homophobia or misogyny.
Barr hates that LGBTQ history and culture could be included in public school curricula. This violates people's right to discriminate against LGBTQ people by making them invisible.
Trump instigates racist violence against Jewish and colored people.
I think this is a kind of freedom, although I think that is what we literally call freedoms.
Tim Libretti is a professor of American literature and culture at a state university in Chicago. A longtime progressive voice, he has published numerous academic and journalistic articles on culture, class, race, gender, and politics, for which he has received awards from the Working Class Studies Association, the International Labor Communications Association, and the National Federation of Press Women and the Illinois Woman & # 39; s Press Association.