The Christian right claims marriage equality is persecution

Her again? Judging by social media, that’s the primary progressive response to the news that anti-LGBTQ activist and former Kentucky County Court Clerk Kim Davis has filed a lawsuit petitioning the Supreme Court to overturn Obergefell v. Hodges, the 2015 decision that legalized marriage equality. The suit, which was brought on Davis’ behalf by the Liberty Counsel, a far-right group devoted to so-called “religious liberty” cases, seeks to appeal a jury verdict that requires her to pay $360,000 in emotional damages and legal fees to a gay couple she denied a marriage license to on religious grounds after the court’s ruling.

Davis’ refusal to issue marriage licenses in the wake of the Obergefell decision provided her with 15 minutes of fame. A federal judge in Kentucky sentenced her to six days in jail for breaking the law, and after her release she gave interviews to ABC News and Christian publications, attended President Barack Obama’s 2016 State of the Union address and embarked on a speaking tour of Romania in support of a referendum that sought to cement the country’s ban on same-sex marriage.

But while most people might have forgotten Davis, she hasn’t moved on. She has spent the last decade proclaiming her alleged victimhood to establish her Christian martyr bona fides. When she ran for reelection in her rural Appalachian county in 2018, she lost by 8%. Now she’s asking the Supreme Court to rule that the only way to preserve the religious freedom of anti-gay bigots is to strip marriage rights away from LGBTQ people.

The argument is so preposterous it feels unlikely that even this far-right Supreme Court, complete with three justices appointed by President Donald Trump, would struggle to pretend that the mere existence of other people’s marriages constitutes oppression of Christians. Unfortunately, it’s not as crazy as it seems — especially after this year’s decision in Mahmoud v. Taylor, which functionally allowed a minority of hyper-religious parents to ban all books mentioning LGBTQ people from schools on the grounds of “religious freedom.” As Justice Samuel Alito argued in that case, because acceptance of marriage equality “is directly contrary to the religious principles” of the plaintiffs, mere exposure to notions of acceptance violates their First Amendment rights.

As many critics pointed out, if merely seeing a same-sex couple in a storybook oppresses Christians, then what about the rest of the world? Are Christians persecuted by TV ads that feature gay families? Are they violated by seeing happy queer couples in public? Are they being wronged if they happen to walk by as people outside a venue celebrate a same-sex wedding? Well, yes, that’s what many in the Christian right believe, including at least some of the court’s conservative justices.

In his dissent of the Obergefell ruling, Justice Clarence Thomas argued that marriage equality “threatens the religious liberty our Nation has long sought to protect.” Seven years later, in his concurrence for Dobbs v. Jackson Woman’s Health, the decision that ended abortion rights, Thomas held that the Supreme Court should also “reconsider” past cases that legalized birth control, gay sex and same-sex marriage.

In 2016, I interviewed Dan Canon, the plaintiff lawyer in Obergefell, who argued that while a Trump-ified Supreme Court could end abortion rights and other important legal precedents, it was “really improbable” that they’d go after same-sex marriage. “Someone would have to be injured by someone else’s right to be married” in order to have standing to sue, he said. He reconsidered his opinion in 2021, writing for Salon that “Trumpism has become terrifyingly proud of its capacity to mow down democratic norms and resculpt them into steaming piles of excrement.”

I reached out to him via email on Tuesday about Davis’ petition. “I think SCOTUS is unlikely to take the case,” he replied, “but I don’t want to sound too confident about that since we are dealing with a court that is obviously motivated by a political agenda and not anything that the rest of the world might recognize as ‘law.’” Still, he wrote, “the ONLY reason to take this particular case would be to undo marriage equality — period.” If the court were to agree to hear Davis’ case, “this [would be] a five-alarm fire and people need to prepare accordingly.”

Jim Obergefell, the case’s lead plaintiff, is more skeptical, according to a recent profile published in POLITICO Magazine to mark the 10th anniversary of the court’s decision. Dylon Jones, who wrote the article and serves as one of the magazine’s senior editors, noted that Obergefell expressed the belief that “the current makeup of the court would have ruled against him. He also believes it could very well overturn the decision now.”

Davis has been actively pursuing this petition for a decade, trying to argue that she has standing because she lost her job. This has never worked, because as a government employee, she had to treat everyone equally according to the law. Imagine the reverse scenario of a county court clerk refusing to issue marriage licenses to Christians because he disapproved of their religion. It quickly becomes obvious why she has no leg to stand on.

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That’s why, since the moment the Obergefell decision was handed down, Republicans have toyed with the broader argument that the mere fact of same-sex marriage’s existence inherently oppresses Christians by making them feel bad. Alito spelled this out in his dissent of Obergefell. If same-sex marriage is legalized, he argued, it would become normalized. “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools,” he warned.

Alito is famously whiny. But he’s far from the only Republican arguing that Christians are being persecuted if they are exposed to evidence that others disagree with their views. Sen. Ted Cruz, R-Texas, argued that it’s “religious oppression” of Christians to simply live in states where same-sex couples are getting married. Brian Umphress, a state court judge in Texas, is suing on the grounds that marrying same-sex couples is not just a violation of his religious freedom, but that he’s also experiencing religious oppression because people think that makes him a bigot. During Justice Ketanji Brown Jackson’s confirmation hearing in 2022, Cruz and Umphress’ fellow Texan, GOP Sen. John Cornyn, went down this road again. He claimed Obergefell “inevitably set in conflict between those who ascribe to the Supreme Court’s edict and those who have a firmly held religious belief that marriage is between a man and a woman.”

Of course, as most people understand, that’s simply not true. No one, absolutely no one, is required to support marriage equality. They are instead required to respect other people’s rights to live in peace and, depending on the local law, to not discriminate in public places or public services. The right to believe what you want remains unmolested. But the Christian right has spent decades redefinining disagreement as persecution. They believe they are entitled to control public opinion, or they are being oppressed.

Part of the problem is that Christian conservatives feel, with good reason, their ideas simply cannot compete in the court of public opinion. That is certainly the case with same-sex marriage, of which 68% of Americans currently approve, despite decades of Christian conservatives claiming it would be the downfall of society. (According to Gallup, the highest approval rating was 71% in 2023; approval among Republicans has dropped 14% since 2022.)

But just because the pro-LGBTQ side has better arguments doesn’t mean they have an unfair advantage. Both sides of this debate had an equal opportunity to express their views. If anything, the right had an unfair advantage because they had so much more money behind their cause — and centuries of sexual shame to back them up. Lashing out like this now is simply being a sore loser. Unfortunately, it’s childish behavior that could lead to a serious loss of a vital human right.