SCOTUS Upholds Denial Of Qualified Immunity To Former County Clerk Who Refused To Register Same Sex Marriage

The Supreme Court of United States, on Monday, upheld denial of qualified immunity to a County Clerk who refused to issue marriage licenses.

Kim Davis, a former county clerk, refused to issue marriage licenses to same sex couple. One of the couples sued her by filing a suit before District Court seeking damages for violation of their right to marry. Davis contended that sovereign immunity shielded her from suit in her official capacity and that qualified immunity shielded her from suit in her individual capacity. Qualified immunity, shields a government official from a lawsuit against her in her individual capacity if (1) she didn't violate any of the plaintiff's constitutional rights or (2) the rights, if violated, weren't "clearly established" at the time of the alleged misconduct. The District Court held that the qualified-immunity issue doctrine didn't shield her, though the doctrine of Sovereign immunity is applicable. The Court of Appeals dismissed the appeal.

Davis, then filed a petition before the Supreme Court of United States praying for a writ of certiorari against the order passed by Court of Appeals. Today, the court denied it.

Justice Clarence Thomas in a statement, noted that, in Obergefell v. Hodges, 576 U. S. 644 (2015),  right to same-sex marriage was read into the Fourteenth Amendment, 'even though that right is found nowhere in the text.'

"Davis may have been one of the first victims of this Court's cavalier treatment of religion in its Obergefell decision, but she will not be the last. Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws. It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law.* But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.", the judge observed. 

The judge, though noted that the petition raises important questions about the scope of decision in Obergefell, said that 'it does not cleanly present them'. "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". he said. Justices Samuel Alito agreed with Justice Thomas.

Right To Same Sex Marriage

By a 5-4 majority, the US Supreme Court in Obergefell ruled that the fundamental right to marry is guaranteed to same-sex couples by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. This judgment has been taken note of by the Indian Supreme Court in its judgment [Navtej Singh Johar] holding Section 377 of Indian Penal Code unconstitutional. 

Justice G R Swaminathan of Madras High Court, last year, had noted this judgment in Obergefell, while directing the authorities to register a marriage solemnized between a man and a transwoman. Recently, a PIL was filed in Delhi High Court seeks a declaration recognizing the right of same-sex couples to get married under the Hindu Marriage Act, 1955. Similarly, a petition filed by Gay couple challenging the provisions of Special Marriage Act 1954 to the extent they do not permit the registration of homosexual marriages, is pending before the Kerala High Court.

 Read Justice Thomas's Statement