Opinion: Senators must ask Barrett about the same-sex marriage precedent

If and when the Senate Judiciary Committee questions Supreme Court nominee Amy Coney Barrett, senators are expected to ask her about whether she accepts Roe vs. Wade, the 1973 ruling legalizing abortion, as “settled law.”

Two current members of the court have teed up another question that should be posed to Barrett: whether she sees as “settled law” Obergefell vs. Hodges, the 2015 case in which the court ruled 5-4 that states must make civil marriage available to same-sex couples.

On Monday, the justices refused to hear an appeal by Kim Davis, a county clerk in Kentucky who became a heroine for Christian conservatives and was briefly jailed after she refused to issue marriage licenses to gay couples in the wake of the Obergefell decision. Davis said “God’s authority” gave her the right to defy the courts.

Justices Clarence Thomas and Samuel A. Alito Jr. agreed with the court’s refusal to hear Davis’ appeal of a lower court decision that she wasn’t entitled to qualified immunity from lawsuits brought by two same-sex couples. But, in a statement written by Thomas, the two justices — who dissented in the Obergefell decision — made it clear they still had problems with it.

“Davis may have been one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last,” Thomas wrote. “Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws.”

Thomas concluded with a not-very-veiled suggestion that the court should revisit the issue of same-sex marriage even if it doesn’t overrule it: “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the 1st Amendment, and by doing so undemocratically, the court has created a problem that only it can fix.”

In itself, this complaint by Thomas and Alito doesn’t threaten the right to equal marriage. Although Thomas cited a dissenting opinion in that case by Chief Justice John G. Roberts Jr., Roberts didn’t sign Thomas’ opinion on Monday. Nor did Justices Neil Gorsuch and Brett M. Kavanaugh.

Still, the Thomas-Alito opinion is a reminder that, like any precedent of the court, Obergefell could be limited or even overruled.

Barrett isn’t going to promise never to vote to overrule either Roe vs. Wade or Obergefell vs. Hodges. Still, senators should press her on whether she sees those decisions as entitled to special respect (and why) and on her general approach to overruling precedents. (In a 2013 article she wrote: “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”)

The conventional view is that answers extracted by senators have no effect on justices once they are confirmed. But at confirmation hearings for Roberts in 2005, the late Sen. Arlen Specter of Pennsylvania pressed him hard about adherence to precedent and elicited the nominee’s concession that overruling precedents causes a “jolt to the legal system.”

In June, Roberts voted to strike down a Louisiana law restricting abortion even though he had dissented from a 2016 decision invalidating a nearly identical law from Texas.

Ideally the Senate would refuse to act on Barrett’s nomination, allowing the winner of this year’s presidential election to name the successor to Justice Ruth Bader Ginsburg — in keeping with a “rule” announced by Senate Majority Leader Mitch McConnell in 2016 when he blocked President Obama’s election-year nomination of Judge Merrick Garland.

But if the hearings do go forward, senators should press Barrett on her views of precedent as they relate not only to Roe vs. Wade and abortion but also to Obergefell and marriage equality. She also should be asked about the other issue in the Kim Davis case: when and whether religious freedom trumps the enforcement of laws (and court decisions) prohibiting discrimination.