“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.”
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 on her general approach to overruling precedents. 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
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