Justice Clarence Thomas wants to overturn same-sex marriage protections. Kim Davis is leading the charge.

Boston Globe

a day ago

What are substantive due process rights? They are constitutional rights that the court has recognized even though they are not explicitly stated in the wording of the Constitution. Instead, they emanate from its Due Process Clause, which prohibits the government's deprivation of a person's
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Thomas specifically cited three court substantive due process precedents that he'd like to see overturned.
The first was
All three of these rulings, and many more including
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Given that
'Because any substantive due process decision is demonstrably erroneous, we have a duty to correct the error established in those precedents,' Thomas wrote (citations, all to his own previous concurring opinions, omitted here).
That was an open invitation. And Kim Davis, a former clerk for Rowan County, Ky., who gained nationwide attention for refusing marriage licenses to same-sex couples after Obergefell was handed down, has answered the call. This
Davis is appealing a $100,000 jury verdict for emotional damages plus $260,000 for attorneys fees in a case brought against her by two Kentucky men who were denied a license to marry in summer 2015, just days after the Obergefell decision. Davis claims that the lawsuit and verdict violated her First Amendment free exercise rights because same-sex marriage goes against her religious beliefs.
She could have stopped there with her petition to the court for relief, but she went further, asking the court to
Legal experts differ as to the likelihood of the court taking this case up. Some, like Georgia State University law professor Anthony Michael Kreis, say that
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I would have agreed with him years ago, before Justice Anthony Kennedy, who authored Obergefell, retired. But with this court, I make no such predictions. While no other justice joined Thomas's call to revisit and reverse all substantive due process precedents, the fact that the current court's majority was willing to cross that rubicon in striking down Roe is a big red flag. Abortion access also enjoys broad public support, but that proved no disincentive to the court.
And the Venn diagram of the antiabortion and the anti-LGBTQ movements, I strongly suspect, looks a lot more like one circle than two. Davis didn't come to the Supreme Court all by her lonesome. The
Finally, although no one joined Thomas's provocative dissent in Dobbs, none of the court's majority rejected it either. Other single-justice calls for challenges, such as the one by Justice Brett Kavanaugh
The stakes are too high to ignore: If Obergefell is overturned,
So I will take Thomas's Dobbs challenge literally and seriously. I think you should too:
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'(I)n future cases, we should 'follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,'' Thomas wrote, quoting the words of the late Justice Antonin Scalia. 'Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.'
This is an excerpt from
, a newsletter about the Supreme Court from columnist Kimberly Atkins Stohr.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at