The U.S. Supreme Court has scheduled a private conference for November 7 to decide whether to hear a case brought by former Kentucky county clerk Kim Davis, seeking to overturn the landmark Obergefell v. Hodges ruling that guarantees nationwide same-sex marriage rights.
Matthew Staver, attorney for Davis, told Newsweek on Thursday that Obergefell “has no basis in the Constitution.” He said the 2015 decision “could be overruled without affecting any other cases,” and that it is “on an island of its own creation.”
Newsweek has also reached out to the Supreme Court’s press office via email on Thursday.
Why It Matters
The deliberation over whether to revisit the court’s 2015 Obergefell decision comes as conservative legal advocates, some Republican lawmakers and advocacy groups renew efforts to limit or roll back federal protections for same-sex marriage. Recent decisions, including the 2022 overturning of Roe v. Wade, which had established federal abortion rights, have fueled concerns that other landmark decisions on civil rights could also be revisited.
If the Supreme Court chooses to hear Davis’ case and ultimately overturns Obergefell, the question of marriage equality could return to the states, potentially ending nationwide uniformity and impacting hundreds of thousands of couples. However, many legal analysts believe the High Court will not overturn the precedent, and additional legal protections for same-sex married couples were passed into federal law in 2022.
What To Know
In Davis’ petition filed to the Supreme Court, her attorney raised religious objections to same-sex marriage. The Supreme Court confirmed on Wednesday that the justices would consider the case on November 7.
“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,'” Staver 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 continues. “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.
Who Is Kim Davis?
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 already 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 previously denied an appeal filed by Davis in 2020. Davis’ new appeal contends she should not be personally liable and has called on the Supreme Court to overrule Obergefell, charging that the decision lacks constitutional basis and has harmed religious liberty.
What Supreme Court Justices Have Said About Obergefell
Some of the Supreme Court’s conservative justices have weighed in publicly on the merits of Obergefell and the legality of same-sex marriage.
Justice Clarence Thomas previously signaled interest in reexamining past precedents like Obergefell. Thomas and Justice Samuel Alito have both criticized the decision on the grounds of alleged threats to religious liberty and substantive due process doctrines.
Earlier this month, Alito reiterated past criticism of the decision, on which he dissented in 2015. However, he also clarified: “In commenting on Obergefell, I am not suggesting that the decision in that case should be overruled.”
Justice Amy Coney Barrett, appointed to the court in 2020 by President Donald Trump, told The New York Times‘ Ross Douthat this month that same-sex marriage has “very concrete reliance interest.” She defined reliance interest as “things that would be upset or undone if a decision is undone.”
In Barrett’s new book, Listening to the Law: Reflections on the Court and Constitution, which was released in September, she wrote that “rights to marry” are “fundamental.”
Asked about this passage in an interview with CBS News, Barrett said: “I describe the doctrine in the book and that is the state of the law, which I described in the book because I want people to understand it. I want Americans to understand the law, and it’s not just an opinion poll about whether the Supreme Court thinks something is good or whether the Supreme Court thinks something is bad.”
Staver told Newsweek that “the justices can’t prejudge or pre-comment on a case without having a case before them and reviewing the facts,” adding that he couldn’t “take from their comments any direction one way or another” on how they were thinking about Davis’ case.
2022 Respect for Marriage Act
After Roe v. Wade was overturned in 2022, ending nationwide protections for abortion rights, there was significant concern from many that same-sex marriage could also be overturned. In response, Congress passed the bipartisan Respect for Marriage Act later that year, which shored up protections for same-sex marriage.
While Obergefell could still technically be overturned, and conservative states could then outlaw issuing same-sex marriage licenses, the bipartisan legislation requires states to recognize all marriages performed in other domestic or foreign jurisdictions. In the House, 39 Republicans voted “Yea,” as did 12 GOP senators—meaning a significant majority of the GOP lawmakers voted against the bill in both chambers.
What Polls Show About Americans’ Views of Same-Sex Marriage
Despite recent conservative backlash, support for same-sex marriage remains strong nationally—Gallup polling found 68 percent of Americans supported same-sex marriage as of May. However, Gallup’s polling also shows declining support among Republicans.
In 2015, the pollster showed that just 37 percent of Republicans thought same-sex marriages should be valid. The figure rose to a record high of 55 percent in 2022 and 2023. It has since dropped to 41 percent as of the spring—a double-digit decline.
What People Are Saying
Staver also told Newsweek: “Obergefell has no basis in the Constitution, and It’s not even rooted in substantive due process. It’s on an island by itself. I believe therefore Obergefell could clearly be overruled without affecting any other cases. And I think that’s the big difference here between the Obergefell and even the Roe v. Wade, the decision that was overruled in Dobbs, It’s on an island of its own creation.”
Daniel Innis, chair of LGBTQ+ group Log Cabin Republicans, previously told Newsweek: “Over the last decade, the presence of gay and lesbian folks in the Republican Party has become much more visible. It’s totally like coming out of the closet a second time when you’re gay, coming out as a Republican. But I think, you know, what has happened as more of us come out … Republicans have realized, “wow, you know, the gay community actually can be conservative.”
Former federal prosecutor Neama Rahmani previously told Newsweek: “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.”
What Happens Next
The Supreme Court is expected to announce soon after its November 7 conference whether it will grant certiorari in Davis’ case. If the court accepts the case, oral arguments could be scheduled for the spring, with a possible decision by June. Should the court deny review, the lower court rulings against Davis, and in favor of the marriage-equality plaintiffs, will stand.
