New Obergefell Challenge Faces Legal and Political Hurdles
Court petition from Kim Davis seen as unlikely to prevail.
A case asking the U.S. Supreme Court to reverse its 2015 decision striking down state bans on same-sex marriage is not keeping Lambda Legal Senior Counsel Jenny Pizer awake at night.
She has two reasons: One, because Congress passed and then-President Biden signed the Respect for Marriage Act in 2022, prohibiting any state from denying recognition of a same-sex or interracial marriage licensed in another state. And two, because reversing Obergefell v. Hodges has not been a top priority for President Trump or many conservatives who are driving his second term agenda.
There are also two reasons to be concerned the court might take up the appeal this session. Justices Clarence Thomas and Samuel Alito have stated they would like to overturn Obergefell. They would need to convince only two more justices to have the four votes necessary to take up the appeal.
But, says Pizer, a 30-year veteran of Lambda’s fight for marriage equality, the Court’s other four conservative justices are mindful that they would need a fifth vote to overturn Obergefell. And, just five years ago, Thomas and Alito agreed with the rest of the court to reject a petition much like the one filed again this session. They said the case, Davis v. Ermold, did “not cleanly present” issues of religious freedom they saw as
important to marriage equality for same-sex couples.
Nevertheless, county clerk Kim Davis of Kentucky has filed yet another petition, Davis v. Ermold, which was docketed by the Court August 1. David Ermold and David Moore are the gay couple who were refused a marriage license by Davis following the Obergefell decision. Davis said at the time she could not issue the license due to her religious beliefs. A federal jury in 2023 awarded Ermold and Moore $100,000 in
damages for Davis’ refusal to issue the license.
In her latest petition, Davis poses three questions: Whether the First Amendment right to free exercise of religion should protect Davis from paying the damages; whether the county should pay the damages for Davis’ act as county clerk, rather than making Davis pay as an individual; and, whether Obergefell v. Hodges should be overturned.
A three-judge panel of the Sixth Circuit U.S. Court of Appeals (which included two Clinton appointees and one Trump appointee) ruled that Davis had made the same arguments before, seeking to have the county pay the damages for the former county official. It ruled that Davis’ action in refusing the couple a marriage license was
the act of a government official and, thus, could not be protected under the Free Exercise clause.
“It’s hard to say for sure what will happen,” says Pizer, “but for now, I’m not staying up all night with anxiety that our marriages will be dissolved and we’ll not be able to marry in future.”
According to the UCLA’s Williams Institute, there are 823,000 married same-sex couples in the U.S. today, 591,000 of which married following the 2015 Obergefell decision.
The Supreme Court docket has placed Davis v. Ermold on the agenda for discussion at the Court’s September 29 private conference. An attorney for the gay couple has asked the Court for an extension until October 8 to file a response to Davis’ petition. As of deadline, the court had not responded to that request.
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