The U.S. Supreme Court is facing a choice about whether to take up a case filed by former Kentucky clerk Kim Davis urging the overturn its decision in Obergefell v. Hodges, the landmark case that guaranteed the right to same-sex marriage nationwide.
Davis’ attorney Matthew Staver told Newsweek he is optimistic the court will take the case. William Powell, the attorney who represented the couple that sued Davis, wrote in a statement provided to Newsweek he is “confident the Supreme Court will likewise agree that Davis’s arguments do not merit further attention.”
Daniel Urman, law professor at Northeastern University, told Newsweek it is unlikely the Supreme Court would agree to overturn same-sex marriage.
Why It Matters
The case, filed by Davis—a former Kentucky clerk who spent six days in jail over her refusal to provide marriage certificates to same-sex couples on religious grounds—could represent a threat to federal protections for same-sex marriage one decade after the nation’s highest court legalized the unions across the country.
Some justices like Clarence Thomas have signaled an openness to revisiting the case in recent years as the court has moved to the right. That conservative shift on cultural issues has been defined by its 2022 ruling overturning Roe v. Wade, which for decades guaranteed abortion rights.
If the court overturns nationwide same-sex marriage, the issue would likely return to the states, many of which have still not passed laws allowing members of the same sex to get married.
What To Know
In a recently filed petition to the Supreme Court, Davis’ attorney Matthew Staver raised religious objections to same-sex marriage.
“Obergefell was ‘egregiously wrong,’ ‘deeply damaging,’ ‘far outside the bound of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed,’ and set out ‘on a collision course with the Constitution from the day it was decided,’” he wrote.
Davis’ case “presents the ideal opportunity to revisit substantive due process that ‘lacks any basis in the Constitution,’ ” the petition reads.
“This flawed opinion 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,’” it reads. “And, until the Court revisits its ‘creation of atextual constitutional rights,’ Obergefell will continue to have ruinous consequences for religious liberty.’”
The filing said that if the court overturns Obergefell, marriage rights would be returned to the states, but that any same-sex couples who were married since the ruling would be grandfathered.
Staver told Newsweek he believes the decision is on “weak on shaky ground.”
“It has no basis in the Constitution,” he said. “It’s what caused this issue with Kim Davis to be sent to prison for six days and now facing hundreds of thousands of dollars personally, is the Obergefell opinion originally, and I think that it’s time to reevaluate that and overturn it.”
Urman told Newsweek it is “very unlikely for the Court to hear the case.”
While Thomas and Justice Samuel Alito may side with her, it’s appears less likely that conservative justices like Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh and John Roberts would move to overturn same-sex marriage, he said.
“There’s a chance that a conservative majority could use the case to expand the rights of religious objectors to same-sex marriage,” he said. “But that’s not the same as overturning the right itself, and I don’t see a majority of the Court ready to do that. Culturally, same-sex marriage has become embedded in American life, and it is still popular in public opinion polls.”
Paul Collins, professor of legal studies and political science at the University of Massachusetts Amherst, told Newsweek that while Davis wants to use the case as a vehicle for the court to overturn same-sex marriage, that isn’t necessarily the issue at the heart of the case.
“Instead, it is about a jury verdict for inflicting emotional damages by violating a same-sex couple’s right to marry. This just isn’t the right vehicle for challenging a constitutional right to same-sex marriage,” he said.
Conservative members of the court are likely to be interested in overturning same-sex marriage but may not view this as the best case to do so, Collins said.
“If the Court were to take the case, I think they would likely stick to the core issue in the case: the jury verdict regarding Davis violating the couple’s constitutional right to marry,” he said.
Kim Davis’ Arguments Have Faced Legal Scrutiny
Davis became a national figure after she denied licenses to same-sex couples following the Obergefell ruling on June 26, 2015, over her religious objections. In September of that year, a judge held her in contempt, and she spent six days in jail.
Davis’ arguments have been rejected by lower courts.
A 6th District Court of Appeals panel earlier this year dismissed her First Amendment argument because she is being “held liable for state action,” rather than her individual actions.
“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,” that ruling reads.
The Supreme Court also denied an appeal filed by Davis in 2020.
How Popular Is Support for Same-Sex Marriage?
Polls show that most American support for same-sex marriage remains high, but has dropped in the past few years. Gallup showed that 69 percent of all Americans back the legalization of same-sex marriage in May 2024, down from 71 percent in May 2023.
Eighty-three percent of Democrats and 74 percent of independents support same-sex marriage, while only 46 percent of Republicans do so.
What People Are Saying
Attorney William Powell, who represents the couple who sued Davis for not providing a marriage license wrote in a statement to Newsweek: “Not a single judge on the U.S. Court of Appeals showed any interest in Davis’s rehearing petition, and we are confident the Supreme Court will likewise agree that Davis’s arguments do not merit further attention.”
Paul Collins, professor of legal studies and political science at the University of Massachusetts Amherst told Newsweek: “Conservative Christians are serious about getting the Court to reconsider Obergefell. This case is being brought by Liberty Counsel, a Christian legal organization. If the Court denies Davis’ petition—which I think it will—this won’t be the end of the battle against same sex marriage and LGBTQ+ rights more generally.”
Daniel Urman, law professor at Northeastern University, told Newsweek: “The current supermajority on the Supreme Court has the votes to reshape American law how they see fit, but the Court still needs to appear legitimate in the eyes of the public. Overturning the right to same-sex marriage could spark tremendous public backlash and criticism of the Court. Chief Justice Roberts would work very hard to avoid this, and I don’t see more than 2 votes (Alito and Thomas) to overturn Obergefell.”
Supreme Court Justice Clarence Thomas wrote in the 2022 case Dobbs v. Jackson Women’s Health Organization: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
What Happens Next
The Supreme Court could make a decision about whether to accept Davis’ case in the coming months but has not indicated either way which way it is leaning.
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