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Davis was the first victim of this Court's cavalier treatment of religion but she will not be the last

Terence P. Jeffrey on

Justice Samuel Alito had a straightforward question, but the lawyer arguing on behalf of the petitioners in Obergefell v. Hodges did not have a coherent answer.

Her central argument in the case: The 14th Amendment's command that the states shall not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" protected a "right" for people of the same sex to marry each other.

Alito did not buy it.

"Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license," Alito said.

"Would there be any ground for denying them a license?" he asked.

"I believe so, Your Honor," said the lawyer.

 

"What would be the reason?" Alito asked.

"There'd be two," she said. "One is whether the state would even say that that is such a thing as a marriage, but then beyond that, there are definitely going to be concerns about coercion and consent and disrupting family relationships when you start talking about multiple persons."

To this, Justice Antonin Scalia responded succinctly, "Well, I didn't understand your answer."

The court ended up ruling 5-to-4 that the 14th Amendment did create a right to same-sex marriage. The dissenters included Scalia, Alito, Justice Clarence Thomas and Chief Justice John Roberts.

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