13:06, October 05 130 0 theguardian.com

2020-10-05 13:06:03
Supreme court rejects appeal from clerk who refused to register gay marriage

The US supreme court said on Monday it would leave in place a decision that allowed a lawsuit to move forward against a Kentucky clerk who was jailed in 2015 after refusing to issue marriage licenses to same-sex couples.

Justice Clarence Thomas, however, wrote for himself and Justice Samuel Alito that while he agreed with the decision not to hear the case, it was a “stark reminder of the consequences“ of the court’s 2015 decision which made same-sex marriage legal.

Because of that decision, he wrote, “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul” of the case “and its effect on other anti-discrimination laws”.

Thomas and Alito are two of five conservatives on the nine-member court. Following the death in September of the liberal justice Ruth Bader Ginsburg, the Trump administration and Republicans who hold the US Senate are attempting to confirm a sixth conservative, the Indiana appeals judge Amy Coney Barrett, before the presidential election on 3 November.

Chase Strangio, a staff attorney with the American Civil Liberties Union, wrote on Twitter that Thomas and Alito’s statement was “a reminder that stare decisis – the principle of applying precedent – will not protect even recently decided cases. The brazenness of the rightward direction of the court is a threat to even the most basic expectation of legal protection.”

Nonetheless, the court said it would not take the case involving Kim Davis, the former clerk of Rowan county, and two same-sex couples who sued her.

Soon after the court ruled in 2015 on Obergefell v Hodges, giving same-sex couples the right to marry across the US, Davis, a Christian who has a religious objection to same-sex marriage, stopped issuing all marriage licenses.

That led to lawsuits and a judge ordered her to issue the licenses. After refusing, she spent five days in jail.

Davis argued that a legal doctrine called qualified immunity protected her from being sued by two couples, David Ermold and David Moore and James Yates and Will Smith.

The case will now move forward.

Davis, a Republican, lost her bid for re-election in 2018. Democrat Elwood Caudill Jr is now the Rowan county clerk.

Strangio added: “I think we can expect states to pass laws that will be direct challenges to Obergefell in 2021 sessions. Which is another reason to pay attention to down-ballot races. State lawmakers have a huge impact on our lives.”