Harry Litman: The Supreme Court is already pulling us back to the future
Kim Davis, as a district clerk at a rally in Kentucky in September, declined to permit gay couples to marry. The Supreme Court refused to hear a related case, but two judges signaled the basis on which they would overturn same-sex marriage.
The Supreme Court opened the 2020 term on Monday, the first Monday in October, and the incipient right-wing majority quickly flexed its muscles. Two immediate steps send clear signals that the court is ready to throw an ax at landmark constitutional inventories that are now defining important aspects of American society.
Most dramatically, the longest-serving two members of the new majority - Justices Clarence Thomas and Samuel Alito - released a consensus on the court's decision not to accept a case that raised eyebrows on its own terms and was even more alarming was a sharp apprenticeship.
In Davis v. Ermold, the judges declined to hear a case by a Kentucky county clerk who refused to grant marriage licenses to same-sex couples because it would undermine their religious opposition to such marriages. Same-sex unions have been the country's law since the 2015 Obergefell Supreme Court ruling against Hodges that a ban on gay marriage violates the constitution's guarantee of equal protection.
On Monday, Thomas and Alito made it clear that they want to override what they see as a "threat to the freedom of religion of Americans", Obergefell, whose belief tells them that marriage is "a sacred institution between a man and a woman." "
It set off a loud alarm over a strong cross-cutting issue - freedom of religion - which was more troubling because the court had previously indicated that the point was not to distinguish between sincere religious beliefs, no matter how unusual or intolerant (as in Case of the Kentucky County Clerk).
Think about the implications. It is undoubtedly true that the right to get married, regardless of your sexual preferences, violates certain sincere religious followers, but why should their objections to the practices of others be that of constitutional priority? Should the same balance of religious freedom occur if someone objects to prayer in school for reasons of faith? What about discrimination in the workplace based on sexual orientation, which the court found prohibited under Title VII in the last term?
The fact that Thomas and Alito published it at all adds to the disastrousness of the opinion. They agreed that for technical legal reasons, the court should not take Davis against Ermold, and then took the opportunity to set a marker for the enemies of same-sex marriage: Come in, the water is fine.
And with the possible inclusion of Amy Coney Barrett on the court, things get even finer. Barrett has already signaled her disagreement with the Obergefell decision and her relatively careless view of the power of the rigid decision. In their view, a precedent weighs modestly on overcoming even fundamental choices that have stood the test of previous challenges and on which hundreds of thousands of Americans have built their lives.
And there was more Monday. Thomas and Alito, this time with Judge Neil Gorsuch, stated in a South Carolina case that we might expect these three to take a crab-like approach to voting. In an unsigned order, the court overturned a district court and an appeals court, both of which had agreed to suspend a state requirement that postal ballot papers must be signed by a witness. With a furious pandemic, the two lower courts found that the rule was too burdensome and a violation of the right to vote.
The Supreme Court reinstated state law, but made an exception for ballots already cast that were received within two days of the order. However, Thomas, Alito and Gorsuch disagreed on this exception: they would simply have declared all untrained ballot papers invalid. During this difficult election period, a parliamentary group in the court has shown how little it is to protect the franchise.
Looking ahead, Thomas and Alito's endorsement of "religious freedom" will cast a heavy shadow over an important case that is already on the court record. In Fulton vs. Philadelphia tells a Catholic welfare group that Philadelphia's non-discrimination requirements that might force adoption agencies to accommodate children with same-sex couples violate Church doctrine that marriage is restricted to one man and woman. Be sure to have the court rule against Philadelphia, especially if Barrett is seated.
Also keep an eye on the "shadow log" - cases like Davis vs. Ermold - in which the court decides without making a full written decision, such as imposing or revoking a stay. If the court puts its thumb on the upcoming election scale, that type of decision will likely be like that.
The 2020-21 shadow protocol also offers a first look at the new majority's stance on abortion. The Trump administration is requesting an emergency warrant to reinstate the FDA rule that abortion pills must be dispensed in a doctor's office or clinic, not by mail or on a prescription called to a pharmacy. A federal judge in Maryland had blocked the rule because the pandemic was restricting doctor visits, which in turn affects a woman's ability to exercise her reproductive rights.
These cases share a common theme: they provide the court with an opportunity to reverse decisions that are in line with the practices and views of a majority of Americans, but many Conservatives who believe that they have changed society for the worse. The new Supreme Court without Ruth Bader Ginsburg sent us a message: buckle up to quickly return to the future.
This story originally appeared in the Los Angeles Times.
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