The U.S. Supreme Court will meet in private conference on November 7 to determine whether to take up a legal challenge to Obergefell v. Hodges, the 2015 decision that established nationwide marriage equality. The case was brought by former Kentucky county clerk Kim Davis, who rose to national prominence a decade ago when she refused to issue marriage licenses to same-sex couples, claiming it violated her religious beliefs.
The court’s decision to review Davis’s petition comes at a tense moment for LGBTQ rights. Since Obergefell was decided in a narrow 5-4 vote, the Court’s composition has shifted sharply to the right. Two of the justices who supported marriage equality—Anthony Kennedy and Ruth Bader Ginsburg—have been replaced by Justices Brett Kavanaugh and Amy Coney Barrett, both of whom were appointed by Donald Trump.
Davis and her lawyer, Matthew Staver, hope that this new Court will be more receptive to their arguments. “Obergefell has no basis in the Constitution,” Staver said, adding that the decision “could be overruled without affecting any other cases,” and that it is “on an island of its own creation.”
The petition argues that Obergefell was “egregiously wrong,” “deeply damaging,” and “far outside the bound of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” Davis’s filing also claims that the decision has produced “disastrous results leaving individuals like Davis ‘find[ing] it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws.’” The petition further insists that “until the Court revisits its ‘creation of atextual constitutional rights,’ Obergefell will continue to have ruinous consequences for religious liberty.”
Davis’s appeal follows a series of defeats in lower courts. Earlier this year, a Sixth Circuit Court of Appeals panel upheld a ruling that she must pay $50,000 in punitive damages to a same-sex couple she refused to license. The court dismissed her First Amendment defense, writing that “although Davis’s assertions are novel, they fail under basic constitutional principles. Under § 1983, Davis is being held liable for state action, which the First Amendment does not protect—so the Free Exercise Clause cannot shield her from liability.”
Her petition to the Supreme Court contends that she should not be personally liable and explicitly calls on the justices to overturn Obergefell. The justices will discuss the case at their November 7 conference, with an announcement on whether to grant review expected on November 13.
Some legal experts believe the case is unlikely to result in a broad reconsideration of marriage equality. “Even [in 2020], Justice Alito, who we all know would love nothing more than to reverse Obergefell, was like, ‘This is not a vehicle for that,’” said Karen Loewy, interim legal director of litigation at Lambda Legal. Constitutional law professor Ezra Ishmael Young similarly cautioned that “it is highly unlikely they will want to touch her case for lots of reasons. The vast majority of cases brought to the Supreme Court are long shots.”
Other analysts share that skepticism, noting that procedural issues in Davis’s case make it an imperfect vehicle for overturning a major constitutional precedent. Former federal prosecutor Neama Rahmani explained, “It’s possible, but unlikely the Supreme Court grants review in the Davis case. Justices [John] Roberts, Thomas, and Alito have publicly criticized Obergefell, so they would need one more Justice to agree to review the case. The problem with Davis’ case is that it turns more on her failure to follow the law than any new constitutional challenge. Even if the Court were to grant review, it may decide the case on narrow legal grounds and allow for religious accommodations for government officials like Davis instead of invalidating same sex marriage entirely.”
Nevertheless, the petition has renewed fears that the Court’s conservative majority could use a procedural opening to weaken or overrule Obergefell, following a pattern seen in the 2022 Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade.
The 2022 Respect for Marriage Act—a bipartisan law passed in response to the fall of Roe—provides some protections for same-sex and interracial couples. The act requires every state to recognize marriages legally performed elsewhere, even if individual states choose to stop issuing marriage licenses to same-sex couples. However, if Obergefell were reversed, those seeking to marry could face a patchwork system where rights vary depending on state borders.
Justices Clarence Thomas and Samuel Alito have both openly criticized Obergefell, describing it as a threat to religious liberty and to what they view as the proper limits of substantive due process. Earlier this month, Alito reiterated his criticism of the 2015 decision, but added, “In commenting on Obergefell, I am not suggesting that the decision in that case should be overruled.”
Barrett’s writings have also drawn attention. Davis’s petition quotes her statement that “stare decisis is only a presumption,” implying that precedents can be revisited. In her recent book Listening to the Law: Reflections on the Court and Constitution, Barrett wrote that “rights to marry” are “fundamental.” In a recent interview, she described the reliance interest in same-sex marriage as “very concrete,” explaining that it refers to “things that would be upset or undone if a decision is undone.”
Despite these remarks, Staver downplayed speculation on how the Court might rule, saying, “The justices can’t prejudge or pre-comment on a case without having a case before them and reviewing the facts,” and that he couldn’t “take from their comments any direction one way or another.”
The political stakes of revisiting Obergefell are significant. Public support for marriage equality remains broad, though partisan divides are growing. Gallup polling shows that 68 percent of Americans support same-sex marriage, while Republican support has fallen from a record high of 55 percent in 2022 to 41 percent this year.
For activists and families who fought for decades to secure equal marriage rights, the idea that the Court could even consider revisiting Obergefell is alarming. But for now, most legal experts believe the Court will decline to hear Davis’s appeal—at least this time.
COMMENTS