On Nov. 4, 2020, the Supreme Court will hear the case of Fulton v. Philadelphia to decide whether private agencies that receive taxpayer funding to provide government services, such as foster care agencies, food banks, homeless shelters and more, could be given a constitutional right to discriminate against and deny services to LGBTQ people based on the agency’s religious beliefs. This decision will undoubtedly consider past cases of organizations and individuals declining services to the LGBTQ community based on religious beliefs; including the high-profile case of Kim Davis.

On Oct. 5, 2020, The Supreme Court declined to hear a case appealed by Kim Davis, a former County Clerk in Kentucky, who refused to issue marriage licenses for same-sex couples in defiance of the Supreme Court’s prior ruling in the landmark case, Obergefell v. Hodges, which expanded the constitutional right to marry to LGBTQ people. While Davis claimed that her religious convictions prevented her from honoring same-sex marriages, her claim for qualified immunity was rejected by the United States Court of Appeals since the right to marry held by same-sex couples was clearly established at the time of her discriminatory actions. Davis was even sentenced to jail time as a result of her non-compliance with Obergefell. Prevailing in district court and affirmed by the Court of Appeals, the same-sex couples raising the issue were eventually able to obtain marriage licenses and were awarded attorney’s fees.

While Davis’ case rapidly gained national attention, the Supreme Court ultimately refused to allow further review. However, two Supreme Court Justices, Clarence Thomas and Samuel Alito, took advantage of this opportunity — the revisiting of the Davis case in the public eye — to reiterate some of their dissenting opinions from Obergefell.

These Justices dissented in Obergefell to point out that the right to same-sex marriage is found nowhere in the text of the Fourteenth Amendment to the United States Constitution and that the Court’s decision to “read a right to same-sex marriage into the Fourteenth Amendment” … “would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman.” They seem to be concerned that the Supreme Court bypassed the democratic process in Obergefell as states were not allowed to resolve this question through the legislative process, which Justices Thomas and Alito believe could have considered accommodations for religious beliefs. The two Justices contended that the Supreme Court’s opinion in Obergefell suggested that sincerely held religious objections to same-sex marriage support a bigoted worldview and are demeaning to gay and lesbian people because they teach that gay and lesbian people are unequal.

In their statement, Justices Thomas and Alito repeated their prediction in the Obergefell dissent that “[t]hese … assaults on the character of fair-minded people will have an effect, in society and in court” allowing “governments, employers, and schools” to “vilify” those with these religious beliefs as “bigots.” Justices Thomas and Alito even went on to say that their “predictions did not take long to become reality.”

Justices Thomas and Alito stated that 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.” These Justices raised concerns that those with sincerely held religious beliefs regarding marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on anti-discrimination laws, but they failed to comment on same-sex couples’ difficulties participating in society when their ability to marry has historically, and it seems continuously, been held under scrutiny.

Justices Alito and Thomas allege that Kim Davis’ petition provides a reminder of the consequences of Obergefell, “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 that only it can fix.”

Some believe that Alito and Thomas’ harsh statement rekindled criticisms over how the Court’s decision in Obergefell should be respected and upheld. Given the timing of the upcoming election and nomination of Judge Amy Coney Barrett, whose positions on Obergefell and same-sex marriage have been seen as oppositional in the past, many LGBTQ activists are concerned about what happens next in the ongoing fight for anti-discrimination and equality for LGBTQ people and same-sex couples.

Now is a critical time for LGBTQ people to engage in government action, vote in the upcoming election, and stand for equality. Please contact a local attorney if you have any questions about upholding and defending your civil rights or about getting involved to protect the freedoms of the LGBTQ community.

Zachary Porfiris is a family law attorney with Sodoma Law, based in Charlotte, N.C. He is a member of the Bar in both North Carolina and South Carolina.