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Two Supreme Court justices have questioned the effects of same sex marriage on religious freedom in the United States. Justice Alito and Justice Thomas have urged the court to reconsider the 2015 ruling determining the constitutional right to same sex-marriage validity in every state. 

The justices aired their opinion during the appeal of Kim Davis, a Kentucky clerk who refused to issue same-sex marriage licences after the 2015 ruling. Citing religious restrictions, Miss Davis says it was “under God’s authority” to continue to refuse same-sex couples legitimacy.  After ignoring District orders, Miss Davis was jailed for contempt of court, subsequently released after five days, agreeing to let her deputies’ issue the licences, which she’d also previously blocked. 

The pair was in accordance with the other justices, citing a lack of lawful substance, subsequently turning down Miss Davis’ appeal. The justices noted that Miss Davis was a ‘victim’ of the amendments to the constitution and that she would not be the last. 

However, the civil rights case of Obergefell v. Hodges, which ushered the landmark ruling in 2015, was questioned with a four page dossier detailing the so-called attack on religious freedom. 

Both Justice Alito and Thomas were voters in the 2015 ruling, losing 5-4, and issuing dissenting opinions at the time. At the time of the ruling, Alito expressed that the current legislature was “deeply rooted in this Nation’s history and tradition”.

Writing in a joint opinion, the pair stated “by choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, the court has created a problem that only it can fix.

“Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society… leaving those with religious objections in the lurch.

“Several Members of the Court noted that the Court’s decision would threaten the liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. 

“Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.

“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.”

James Obergefell, the lead plaintiff and activist, who lead the 2015 ruling fought for his right to put his name on his husband’s death certificate, says “Justices Thomas and Alito seem to imply that freedom of religion carries more weight, is more important, than all other rights.” 

Since the 2015 ruling, 8 out of 67 counties in the state of Alabama re-enacted a much forgotten  1961 amendment, which allowed states to refuse to administer marriage licences altogether. Historically used to stop interracial couples marrying, the prejudicial ruling has since been used to warn off same-sex couples, affecting an area home to 6% of Alabama’s total population. 

The news of the dissenting justices is particularly alarming as, depending on which way the upcoming U.S election goes, there could be an influx of dissenting justices in the Supreme Court, leading to a possible amendment in the marriage-equality act. 

Thomas Jefferson was rather more enlightened over 200 years ago.

Perhaps Thomas Jefferson said it best in 1816, “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.”

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Danielle Monk

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