Think protection of same-sex marriage was settled law? Think again.
The Constitution protects religious beliefs. It does not protect a person's right to discriminate based on religious belief. But that long-held understanding of the Constitution could be about to change. On Monday, two Supreme Court justices — Clarence Thomas and Samuel Alito — indicated they see things quite differently. They would allow discrimination against gays and lesbians by those who have a religious objection to same-sex marriage.
The justices' position is extremely worrisome, and it could be an indication that the Supreme Court will soon create a broad exception to anti-discrimination laws.
Alito and Thomas made their views known on Monday when the court denied review in what should have been an easy case involving Kim Davis, a court clerk in Kentucky who refused to issue wedding licenses to same-sex couples. The lower federal courts rightly ruled against Davis' claim that she could refuse to issue the licenses based on her religious beliefs. If Davis had prevailed, then clerks with a religious objection to interracial or interfaith marriages could likewise refuse to issue marriage licenses. The right of couples to marry, which the Supreme Court has deemed a fundamental liberty, cannot be made to depend on the religious beliefs of those who issue marriage licenses.
But, while agreeing that the court should not hear the Davis case, Justice Thomas, joined by Justice Alito, took the opportunity to lambaste the Supreme Court's 2015 ruling that establishes a constitutional right of marriage equality for gays and lesbians. He accused the court of "choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the 1st Amendment."
Until reading Thomas, I had naively assumed that the issue of marriage equality between gays and lesbians had been firmly settled by the court. Some 300,000 same-sex couples have gotten married thanks to the court's 2015 decision in Obergefell v. Hodges. But Justices Thomas and Alito have now made it clear they are eager to overrule that decision, and they could well have support from the other conservatives on the court.
Chief Justice John Roberts wrote a vehement dissent in Obergefell when it was decided. Justice Neil Gorsuch, who was not on the Supreme Court in 2015, made clear in a 2017 decision that he thought the marriage case was wrongly decided. President Donald Trump's nominee for the court, Judge Amy Coney Barrett, has said that Justice Antonin Scalia's "judicial philosophy is mine too," and he wrote a very angry, sarcastic dissent to the court's finding a right of gay and lesbian couples to marry.
Even if the court does not overrule Obergefell, the conservative justices are likely to find a right of people based on their religious beliefs to refuse to serve same-sex couples. Two years ago, the court decided a case involving a Colorado baker who had refused to design and make a cake for a same-sex couple in violation of the state's civil rights law. Although the court did not decide the religious freedom claim in the case, there are similar cases around the country involving florists and photographers and stationery stores that claim a right to discriminate against gay and lesbian couples.
In June, the court held that federal law prohibits employment discrimination on the basis of sexual orientation or gender identity. The court left open whether an employer with a religious objection can refuse to employ gay, lesbian and transgender individuals.
Under current constitutional law, the answer is clear that religious beliefs are not an excuse for discriminating. In 1990, the court, in an opinion by Justice Scalia, said that people are not entitled to exceptions from general laws on account of their religious beliefs. Besides, in the language of constitutional law, there is a compelling government interest in stopping discrimination, and this justifies limiting the ability of people to discriminate.
But this law may change very soon. On Nov. 4, the court will hear oral arguments in Fulton v. City of Philadelphia, where it is being asked to overrule the 1990 case and allow religions to ignore anti-discrimination requirements. Philadelphia contracts with private social service agencies to place children in foster homes. To contract with the city, an agency must agree not to discriminate based on race, sex, religion or sexual orientation. Catholic Social Services refuses to place foster children with gay and lesbian couples, and the group has challenged its exclusion from the program. The lower federal courts, following Supreme Court precedent, ruled in favor of Philadelphia.
My sense is that the five conservative justices will be very sympathetic to Catholic Social Services, and that Judge Barrett, if confirmed, would be a sixth vote to protect the right to discriminate. If so, this will create a huge exception to anti-discrimination laws. An employer who, based on religious beliefs, thinks that men and women should not be in the same workplace would be able to discriminate based on sex. Employers would be allowed, based on their religious convictions, to deny employment based on sexual orientation and gender identity.
For more than half a century, our society has made the choice that stopping discrimination is more important than protecting a right to discriminate. But now the conservatives on the Supreme Court are moving strongly in the other direction to create a right of people to exercise their religious freedom to discriminate against others.
If that happens, then could Kim Davis or another clerk somewhere refuse to issue a marriage license for an interracial couple? Or could the owner of Masterpiece Cake shop claim that a religious belief kept him from serving African Americans? There should be no right, based on religion or anything else, to discriminate against gays and lesbians.
Erwin Chemerinsky is dean of the UC Berkeley School of Law and author (with Howard Gillman) of "The Religion Clauses: The Case for Separating Church and State."