Supreme Court conservatives' latest attack on marriage equality reveals how Barrett could tip the court

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Kathryn Krawczyk
·2 min read
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Supreme Court Justice Clarence Thomas took an unprompted shot at marriage equality on Monday.

At the start of its term Monday, the Supreme Court declined to hear a lawsuit from Kim Davis, the former Kentucky county clerk who refused to issue marriage licenses to same-sex couples despite a federal court order. Thomas, joined by Justice Samuel Alito, agreed that Davis' case shouldn't be heard, but also issued a scathing attack on the Obergefell v. Hodges ruling that made same-sex marriage the law nationwide.

Obergefell "read a right to same-sex marriage into the 14th amendment, even though that right is found nowhere in the text," Thomas argued in his Monday statement. In the process, it suggested those who opposed same-sex marriage for religious reasons "espoused a bigoted worldview," Thomas wrote, deeming Davis "one of the first victims of the court's cavalier treatment of religion." And until Obergefell is overturned, it will "continue to have ruinous consequences for religious liberty," Thomas finished.

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Only four justices need to agree to hear a case, meaning Thomas and Alito's dissent alone wouldn't be enough to get it on the docket. But the possible induction of nominee Amy Coney Barrett, a conservative, could put another voice in favor of hearing a challenge to Obergefell. It's something Jim Obergefell himself is afraid of, telling The Daily Beast that "what I, and the many other marriage equality plaintiffs fought for, is at more risk than ever before" after Barrett's nomination.

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