Told you so.
That, in effect, was the message from U.S. Supreme Court Justice Clarence Thomas after there were not enough votes on the eight-member court to accept and review a case involving Kim Davis, who was the Kentucky county clerk who in 2015 declined to process any marriage licenses, either for same-sex or opposite-sex duos, after the court itself created same-sex marriage.
Davis made headlines, and went to jail on the order of an activist federal court judge, David Bunning, for her stand for her Christian faith.
Multiple lawsuits resulted, and one, addressed most recently by the 6th U.S. Circuit Court of Appeals, left hanging that there was a "plausible case" that she, as an individual, violated the rights of those gays.
The 6th Circuit ruling explains it wasn't a simple decision, made first by Bunning. That ruling said, at length, that Davis stated she was immune from lawsuits.
"The law treats Davis not as one person, but as two: an official and an individual. The doctrine of sovereign immunity shields Davis as an official if, when refusing to issue marriage licenses, she acted on Kentucky's behalf – but not if she acted on Rowan County's behalf. And the doctrine of qualified immunity shields Davis as an individual if she didn't violate plaintiffs' right to marry or, if she did, if the right wasn't clearly established when she acted."
The state later changed its law to protect county clerks because of her case.
The result actually comes in a preliminary dispute in the fight, since there has been no trial, no discovery and no final ruling from the district court.
So the appeals concerned only the "allegations."
"So we ask not whether Davis definitively violated plaintiffs' rights but whether they adequately allege that she did," the 6th Circuit said.
"The district court ruled that Davis, as an official, acted on Kentucky's behalf, meaning sovereign immunity protected her. Plaintiffs dispute that ruling. The court also ruled that plaintiffs pleaded a plausible case that Davis, as an individual, violated their right to marry and that the right was clearly established, meaning qualified immunity didn't protect her. Davis disputes that ruling. We agree with the district court on both issues."
That statement was the last standing, since the Supreme Court has refused to review, an action that brought a blistering scolding from Thomas.
He noted that the Supreme Court created the right to same-sex marriage "even though that right is found nowhere in the text" of the 14th Amendment.
"Several members of the court noted that the court's decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the states had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs," he said.
"The court, however, bypassed that democratic process. Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often 'decent and honorable' … the court went on to suggest that those beliefs espoused a bigoted worldview…"
Thomas noted that the four justices who didn't agree with the creation of a new right, "predicted that 'these … assaults on the character of fair-minded people will have an effect, in society and in court.'"
"Those predictions did not take long to become reality," he scolded, citing the Davis case.
The now-former county clerk is a Christian, he said.
"When she began her tenure as clerk, Davis' sincerely held religious beliefs – that marriage exists between one man and one woman – corresponded with the definition of marriage under Kentucky law," Thomas said.
At the time, she was lobbying for amendments to state law to protect religious rights, he said.
"But those efforts were cut short by this court's decision…," he said.
"As a result of this court's alteration of the Constitution, Davis found herself faced with a choice between her religious beliefs and her job. When she chose to follow her faith, and without any statutory protection of her religious beliefs, she was sued almost immediately…"
He described Davis as possibly being "one of the first victims of this court's cavalier treatment of religion in its Obergefell decision, but she will not be the last."
He warned, "Those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate society without running afoul of Obergefell and its effect on other antidiscrimination laws."
He pointed out how even courts are infected with anti-Christian bigotry, with "one member of the Sixth Circuit panel in this case [describing] Davis' sincerely held religious beliefs as 'anti-homosexual animus.'"
"Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy," he said.
He said Obergefell will continue to have "ruinous consequences for religious liberty."
The American Civil Liberties Union immediately issued a statement condemning Thomas, and Samuel Alito who joined Thomas, for the opinion.
"It is appalling that five years after the historic decision in Obergefell, two justices still consider same-sex couples less worthy of marriage than other couples. When you do a job on behalf of the government — as an employee or a contractor — there is no license to discriminate or turn people away because they do not meet religious criteria," the ACLU said.
But Liberty Counsel, which has worked on behalf of Davis, said the two justices appear to be inviting future challenges to the Obergefell ruling itself.
The legal team pointed out that Thomas pointedly wrote, "the court has created a problem that only it can fix."
"Even though the High Court declined to take up qualified immunity, Justices Thomas and Alito are inviting future challenges regarding Obergefell and to fix the mess the court created," said Liberty Counsel chief Mat Staver.
The organization has explained that the law was uncertain at the point the dispute arose because while the Supreme Court can strike down a law, it cannot rewrite a state statute into something else.
The state legislature was required to do that, and it had not acted yet when the fight erupted. It happened because several same-sex duos bypassed other jurisdictions where they could have obtained licenses to target Davis with lawsuits.
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