On the surface, a decision by the Supreme Court on Monday was a victory for advocates of gay marriage: The court declined to take up the appeal of Kim Davis, a former Kentucky county clerk who was sued after refusing to issue marriage licenses to same-sex couples. But a bigger issue might loom. Justices Clarence Thomas and Samuel Alito agreed with the decision not to take up Davis' case, but only because they said it did not "cleanly present" the key questions about the court's landmark 2015 ruling establishing a constitutional right to gay marriage, reports Fox News. And the justices, both of whom dissented in the 2015 case, Obergefell v. Hodges, seemed to back the idea of the court reconsidering its decision in that case, per the New York Times.
“Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss,” Thomas wrote. The court, he added, "created a problem that only it can fix." With the court possibly on the brink of a 6-3 conservative majority, Mark Joseph Stern at Slate writes that "marriage equality is in imminent peril." The ACLU is similarly worried, calling it "appalling that five years after the historic decision in Obergefell, two justices still consider same-sex couples less worthy of marriage than other couples." But at the Washington Post, Robert Barnes points out that Chief Justice John Roberts (who also dissented in the 2015 ruling) and Trump appointees Brett Kavanaugh and Neil Gorsuch did not join Thomas' opinion. (Read more gay marriage stories.)