On June 26, 2015, the Supreme Court issued a decision that transformed marriage law across the United States. In a 5-4 majority opinion by Justice Anthony Kennedy, the court ruled that states, under the 14th Amendment’s Equal Protection Clause, must license marriages between two people of the same sex. Celebrated by the LGBTQ+ community, Obergefell v. Hodges (2015) is the most significant LGBTQ+ rights case in American history and a defining decision of the twenty-first century.
Yet, this landmark decision was not without controversy. At the time of Obergefell v. Hodges, 35 states held statutory or constitutional bans on same-sex marriages. With four dissenting opinions from the conservative wing of the Supreme Court, challenges against the ruling ranged from judicial overreach to distortion of the constitutional definition of “Liberty.” The most pertinent of these challenges came from Justice Clarence Thomas, who argued that “the majority’s decision threatens the religious liberty our Nation has long sought to protect.” Nearly a decade later, Justice Thomas’s concern resurfaced in the ongoing challenge brought by Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples on religious grounds.
Kim Davis has submitted a petition to the Supreme Court, claiming that Obergefell v. Hodges violates the First Amendment right to religious freedom. Her petition to the court comes after the Kentucky county clerk was jailed for six days in 2015, and is appealing a verdict that resulted in her paying over $360,000 for emotional damage and attorneys’ fees. By filing the petition, the Supreme Court will hear Ms. Davis’s argument, but whether they take the case is a separate matter that has yet to be determined. The Supreme Court hears over 7000 petitions and decides to rule on less than 1% of cases brought before it. However, the Court has directed Moore and Ermold (the couple Ms.Davis refused to certify) to file a response to Davis’ petition by October 8. While the Court can deny review based solely on the petition, requesting a response signals that this case is not in the pile of automatic denials but rather in the pool of cases under active consideration. Anytime the Court grants review, it requires such a response. Nevertheless, Justice Thomas’s dissent in Obergefell, along with a 6-3 conservative majority, are cited as concerns for a potential overturn of this landmark marriage rights case
Ms. Davis’s petition is unique, as it provides a potential carve-out for clerks to refuse to certify gay marriages without requiring Obergefell to be overturned. The fundamental issue of Ms. Davis’s action in 2015 was that, in her capacity as a government employee, she was not entitled to the same First Amendment protections she would have as a private citizen. By refusing to issue licenses, she was violating Moore and Ermold’s rights under the Equal Protection Clause, as recognized in Obergefell v. Hodges. The district judge declared Ms. Davis in contempt of court for six days until her deputies began licensing same-sex marriages. A ruling in Ms. Davis’s favor may not overturn Obergefell outright, but it could allow county clerks to refuse certifying same-sex marriages under a religious pretense, thereby making the process of marriage significantly more burdensome for LGBTQ+ individuals.
However, Ms. Davis’s argument remains undermined by significant judicial precedent. In Employment Division v. Smith (1990), Justice Antonin Scalia ruled that an individual’s religious beliefs are not sufficient reasoning to excuse compliance with an otherwise valid law prohibiting conduct that the government is free to regulate. In his decision, he goes on to point out that allowing such exceptions would “open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” This demonstrates that Ms. Davis’s argument of personal religious freedom guaranteed by the First Amendment does not supplant the Obergefell v. Hodges decision.
What may be slightly more troublesome about this petition for the LGBTQ+ community is that it does not simply extend to the First Amendment. While the challenge itself outlines Ms. Davis’s own religious convictions, an important part of the Employment Division v. Smith case specifically states that the law must be “otherwise valid.” While the Obergefell decision, in most circumstances, would be sufficient precedent to point towards meeting the validity criteria, the 6-3 conservative majority in the courts and Justice Thomas’s concurring opinion in the Dobbs v. Jackson Women’s Health (2022) case (where he named Obergefell as one of the cases to be relooked at), may put the Obergefell v. Hodges ruling under a microscope once again. In this way, Ms. Davis’s petition could become a Trojan horse: framed as a narrow question of religious freedom, but carrying with it the potential to test the validity of Obergefell itself.
Ultimately, the decision to hear Ms. Davis’s petition will be left to the judgment of the courts, who will rule on whether there’s sufficient reasoning within the petition to re-examine Obergefell. Just as Dobbs reopened questions many thought settled, even the decision to entertain Ms. Davis’s petition could fuel uncertainty over rights that millions of Americans now take for granted. The question the Court must ask itself is whether it will continue to balance seemingly competing constitutional claims (liberty for same-sex couples on one side, free exercise of religion on the other), or whether it will tip the scales decisively toward one or the other. If the Court entertains Davis’s case, it won’t just be ruling on marriage licenses in Kentucky; it could once again put the rights of millions of Americans on uncertain ground.
