The Corner

Law & the Courts

Alito and Thomas on Obergefell

Charlie, Pete Buttigieg is claiming that Justices Thomas and Alito are “openly calling” for Obergefell to be overturned. That is at best an overstatement. The justices’ concurrence admits of a different interpretation altogether. They write, “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”

They could have written that “as long as Obergefell remains good law, it will continue” etc. There are, however, two ways the Court could “fix” the problem other than overturning Obergefell. It could find a way to walk away from the problematic dicta that the justices identify in Justice Kennedy’s decision in that case, or it could expand its protection for the free exercise of religion. Of these three options — reverse Obergefell, repudiate some of its reasoning, or expand free exercise — the one that seems most likely is the last. Employment Division v. Smith seems more and more vulnerable to a reversal.

Update: The original post said Alito and Thomas had written a dissent; it was actually a concurrence.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.