The Supreme Court on Monday declined to consider a challenge to its landmark 2015 decision recognizing a constitutional right to same-sex marriage.
The announcement, which came with no comment from the justices, indicates there is not an appetite among the high court’s conservative majority to revisit the case known as Obergefell v. Hodges, one of the court’s most significant decisions in recent years. June marked the 10-year anniversary of the ruling.
The Supreme Court on Monday declined to consider a challenge to its landmark 2015 decision recognizing a constitutional right to same-sex marriage.
The announcement, which came with no comment from the justices, indicates there is not an appetite among the high court’s conservative majority to revisit the case known as Obergefell v. Hodges, one of the court’s most significant decisions in recent years. June marked the 10-year anniversary of the ruling.
Legal experts had said for months there was little chance of the current high court reconsidering the Obergefell ruling, but even the slim possibility had created considerable anxiety among many same-sex couples.
Since the marriage case was decided, the court has moved significantly to the right. Three of the five justices who ruled in favor of same-sex marriage rights — Justices Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen G. Breyer — are no longer on the court. Two have been replaced by more conservative justices. Under the court’s rules, four justices would have had to vote to take the case for it to be considered.
Ever since 2022, when the court overturned its Roe v. Wade ruling guaranteeing a right to abortion, gay rights advocates have warned that same-sex marriage could be the next precedent to be overturned. Legal analysts, however, have noted that the two precedents differ in important ways, including the existence of more than 800,000 same-sex couples now legally married in the United States, according to research by the Williams Institute at UCLA law school.
The chances of the justices taking another look at same-sex marriage were considered especially slim given the legal context of the current case. The request to reconsider the ruling came from a county clerk in Kentucky, Kim Davis, who stopped issuing marriage licenses shortly after the Supreme Court’s ruling. Among the couples she refused licenses to were David Moore and David Ermold. Davis told them she was acting “under God’s authority.”
Moore and Ermold sued Davis, arguing she violated their constitutional right to marry. A federal court in Kentucky ruled for the couple, and a jury awarded them damages of $50,000 apiece in 2023.
Davis appealed, saying that issuing the couple a marriage license would have violated her right to freely exercise her religion, but an appeals court ruled against her. The appeals court found Davis was acting as an agent of the state, so she was not protected by First Amendment rights.
Davis then asked the Supreme Court to take up her case.
Notre Dame Law School Professor Richard W. Garnett said in a statement that even if there had been an appetite to revisit same-sex marriage, this was not the case the justices would have used. To get to the marriage issue, the justices would first have had to rule that Davis, a government employee, had a constitutional right to ignore a law she disagreed with — a position the court would be unlikely to take, legal analysts noted.
“No informed Court observers ever thought that the Court would grant review in this case,” Garnett said. “The case does not actually present, in a square and clean way, the question the coverage has suggested it does.”
Lambda Legal, a group that advocates for LGBTQ+ people, praised the high court for rejecting the case. Kevin Jennings, the group’s chief executive, said the decision not to hear the “frivolous case” was a victory “for everyone who believes in our constitution and the rule of law.”
“The court’s decision reaffirms a simple fact: Equal protection of the law applies to all, not just some,” Jennings said in a statement.
Jennings also signaled that he did not believe the court’s rejection of Davis’s case would put an end to efforts to challenge same-sex marriage.
“Our opponents are well-resourced and determined” and will “keep trying to undo the progress we’ve made,” he said.
On that point, Mat Staver, the founder and chairman of Liberty Counsel, the legal group representing Davis, agreed with Jennings, vowing to “continue to work to overturn Obergefell.”
“It is not a matter of if but when the Supreme Court will overturn Obergefell,” Staver said as he sharply criticized the high court’s decision not to consider the case. “By denying this petition, the high court has let stand a decision to strip a government defendant of their immunity and any personal First Amendment defense for their religious expression,” Staver said.
Same-sex marriage enjoys strong support among the public. Recent Gallup polling shows nearly 70 percent of Americans believe same-sex marriages should be recognized by the law, while only about 30 percent oppose that idea.
Mary Bonauto, GLAD Law senior director of civil rights and legal strategies who argued Obergefell in 2015, said some signs indicate some of the court’s conservatives may not want to revisit the case.
Bonauto pointed to Justice Amy Coney Barrett’s new memoir and a recent interview, where she said the marriage ruling has generated “concrete reliance interests,” meaning people had come to depend on it and overturning it would cause upheaval.
“She recognized there were important reliance interests in marriage and she is not alone,” Bonauto said, adding Justice Neil M. Gorsuch had offered a similar sentiment in a 2020 ruling.
But Obergefell marked a high water mark for gay and transgender rights at the Supreme Court. In recent rulings, the conservative majority on the high court has allowed President Donald Trump to end a policy of self-identifying gender on passports, permitted religious parents to remove their children from lessons with LGBTQ+ themes and green-lit state efforts to ban gender transition treatments for minors.
The Supreme Court will also decide this term whether states can ban conversion therapy for gay and transgender teens, and the legality of state laws that ban transgender athletes from girls and women’s sports teams.
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