In a surprising and virtually unprecedented commentary issued on Monday, two US Supreme Court justices publicly signaled that they are willing to reverse the Court’s narrow 5-4 ruling in 2015 imposing same-sex ‘marriage’ on the nation in the Obergefell v Hodges case. In a procedural opinion issued this week in a different case, Justice Clarence Thomas wrote for himself and Justice Samuel Alito that the “right to same-sex marriage…is found nowhere in the text [of the Constitution].” He called it “an alteration to the Constitution” and said that the decision whether or not to change the definition of marriage should be left up to the states.
The declaration sent shock waves throughout the homosexual community. A pro-gay writer at Slate magazine minced no words about the importance of this development: “If Amy Coney Barrett is confirmed [same-sex marriage] is likely doomed.”
The news was welcomed by pro-family groups such as the National Organization for Marriage (NOM). NOM’s president, Brian Brown (who also is the publisher of ifamnews.com) said, “For many months, NOM has pointed out that we are approaching – if not already at – the point where the Supreme Court’s illegitimate, anti-constitutional imposition of gay ‘marriage’ on the nation in the Obergefell ruling could be reversed. Now two Supreme Court justices, Clarence Thomas and Samuel Alito, have given voice to that very point. Make no mistake about it – the confirmation of Judge Amy Coney Barrett to the Supreme Court is essential to our continuing efforts to overturn Obergefell and restore marriage to our nation’s laws.”
Here’s what went down this past Monday: In a written explanation of their decision in a procedural ruling on a case, Justice Clarence Thomas took the highly unusual step of issuing a statement on behalf of himself and Justice Alito that by improperly reading a right to same-sex ‘marriage’ into the US Constitution, the Supreme Court “threaten[s] the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman.” The Obergefell decision, Justice Thomas wrote, casts people of faith as “bigots,” “demeaning to gays and lesbians,” “imposing stigma and injury” and “disrespectful to gays and lesbians.” But none of those things are true, he said. Instead, the issue of same-sex ‘marriage’ is one that properly belongs to the states, where policymakers could debate the matter including any accommodations they might wish to afford people of faith. That debate was short-circuited, Justice Thomas lamented, by the ill-advised, narrow 5-4 majority that decided Obergefell, Justice Thomas said “It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process…[b]ut it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.”
It is highly unusual for Supreme Court justices to make any comments on a procedural ruling, let alone signal their desire to overturn a major decision such as Obergefell. So where do pro-family advocates stand in terms of being able to secure a majority of votes on the Court to overturn the illegitimate, anti-constitutional Obergefell ruling?
It’s always speculation to predict how a justice might vote on a future case, but here’s how things line up to me:
It takes five votes to secure a majority on the Supreme Court. So we start with Thomas + Alito = 2.
Fellow conservatives Neil Gorsuch and Brett Kavanaugh both strongly believe that the Constitution should be interpreted as written and, thus, are thought to be reliable votes against the imposition of same-sex marriage. That results in Thomas + Alito + Gorsuch + Kavanaugh = 4.
Chief Justice John Roberts strongly objected to the majority ruling in Obergefell, but he can be fickle and certainly cannot be counted on to cast the deciding vote to reverse Obergefell. So, that leaves us still at 4 votes to reverse Obergefell, with a question mark, among the current justices.
This brings us to Judge Amy Coney Barrett who has a long record of personal support for traditional marriage and has been sharply critical of Supreme Court rulings that articulate so-called “rights” that are found nowhere in the text of the Constitution. If past is prelude, then we have Thomas + Alito + Gorsuch + Kavanaugh + Barrett = 5. With Amy Coney Barrett on the Supreme Court, her deciding vote to restore marriage could well be enough to persuade Chief Justice Roberts to stick with his original opinion and vote to overturn Obergefell as well.
Add this all together and you get a formula that, regardless of Justice Roberts’ vote, would spell the end of court-imposed same-sex marriage, and return the issue to the states where over 50 million Americans have already cast ballots to define marriage as the union of one man and one woman.
Now, there are a lot of ‘ifs’ in this scenario and admittedly it involves a good deal of speculation. Still, it seems clear to me that the issue of the imposition of same-sex ‘marriage’ on this nation is now front and center once again, a development that makes the confirmation of Judge Amy Coney Barrett all the more important for conservatives and pro-family advocates.
On this, I am in complete agreement with pro-gay advocates and leftist publications like Slate magazine.
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