Kim Davis’s challenge to gay marriage uses highly unusual legal approach
Appeal to Supreme Court seeks to overturn 2015 Obergefell decision
The typical way to try to get the U.S. Supreme Court to overturn a major ruling is to violate that ruling or pass a law contrary to it. This is exactly how anti-abortion activists sought to get the high court to overrule Roe v. Wade: They persuaded Mississippi legislators to pass a law contrary to Roe’s provisions, or at least skirting its inner edges, setting up a legal dispute that ended with the 2022 Dobbs v. Jackson Women's Health Organization decision upholding the state law and overturning Roe, returning to states the power to outlaw abortion.
But that is not the approach one of the nation’s leading anti-gay-marriage activists is using in her attempt to overturn Obergefell v. Hodges, the 2015 ruling that said states couldn’t deny marriages licenses to couples simply because they were of the same sex. Kim Davis, a Kentucky county clerk in 2015, made national headlines when she defied the ruling by refusing to sign off on issuing a marriage license to a male couple.1 Now she has petitioned the U.S. Supreme Court to overturn Obergefell — even though there are no jurisdictions defying it and gay marriage has come close to dropping off the political radar as even the Republican Party no longer includes opposition to gay marriage in its national platform.
Davis’s petition to the U.S. Supreme Court, stemming from a trial court ruling in which the couple of David Ermold and David Moore were awarded $50,000 each for emotional distress from being denied a marriage license2, is in some ways a legal curiosity. Most of it is a typical petition for a writ of certiorari, meaning a request that the high court hear the case: Like most such writs involving personal liberties, it argues constitutional grounds for a determination, in this case that the U.S. Constitution prohibits a civil penalty under these circumstances, namely one in which she was sued in her personal capacity for her work as a government employee. The high court could make such a determination without even considering whether it erred in its Obergefell decision. In fact, the Sixth U.S. Circuit Court of Appeals, at least in its written opinions, all but ignored Obergefell, noting only that it is the law of the land.
In other words, it is conceivable that Davis could win her case without overturning Obergefell.
By all appearances, Davis’s calls for First Amendment immunity appear to be little more than a means to get the issue of Obergefell before the high court. If the Supreme Court agrees to hear the case, supporters of gay marriage will almost certainly argue that the court has no constitutional ability to hear that part of the case: Article III of the U.S. Constitution limits the judicial system’s jurisdiction primarily to “controversies” — a provision that has widely been interpreted to mean that the courts can’t issue advisory opinions or otherwise rule on matters where no legal conflict exists. And unless someone is denying or attempting to deny marriage licenses to same-sex couples, there is no legal controversy — or so the argument could go.
Davis has been represented by attorneys from Liberty Counsel, an international nonprofit litigation and policy organization that focuses on religious-liberty concerns and issues related to abortion and family life.
Appeals panel warned of ‘dire possibilities’
The appeals court’s 3-0 decision was written by Helene White, a George W. Bush appointee. Andre Mathis, a Joe Biden appointee, concurred in the opinion, while Chad Readler, a Donald Trump appointee, concurred in part with the majority view and concurred the judgment. Readler’s concurrence essentially agreed with the majority’s conclusion but differed in its reasoning.
Most notably, the majority cautioned that accepting Davis’s legal arguments could lead to radical results. Because the essence of her argument is that she qualifies for a degree of immunity because she acted out of religious conviction, the implication of her case is that government employees with a variety of religious views would be entitled to act similarly:
Indeed, it is not difficult to imagine the dire possibilities that might follow if Davis’s argument were accepted. A county clerk who finds interracial marriage sinful could refuse to issue licenses to interracial couples. An election official who believes women should not vote could refuse to count ballots cast by females. A zoning official personally opposed to Christianity could refuse to permit the construction of a church. All these officials would have wielded state power to violate constitutional rights — but they would have followed their conscience, which Davis believes provides a “defense to liability.” ...
That is not how the Constitution works. In their “private lives,” ... government officials are of course free to express their views and live according to their faith. But when an official wields state power against private citizens, her conscience must yield to the Constitution.3
What’s next
The Supreme Court is scheduled to discuss its “long docket” on Sept. 29, viewing a list of petitions received this summer and earlier, so that is the first date that it could decide whether to accept the case for consideration. Votes of four of the nine justices are needed to decide whether to hear a case, although they are not required to make that decision by any particular deadline. Justices Clarence Thomas and Samuel Alito, both in the minority in the Obergefell decision, are considered to be the ones most likely to want to revisit the earlier decision.
Chances are the cases other than Davis’s will receive priority consideration for placement on the court’s agenda: Among the petitions before the court are ones involve Trump’s tariff authority and Jeffrey Epstein accomplice Ghislaine Maxwell’s appeal of convictions in the well-publicized sexual abuse case.
One other case involving religious-freedom issues, a challenge of vaccine mandates, is also among the cases that could be considered.
Davis’s office ultimately issued same-sex marriage licenses without her signature under the terms of an accommodation made by the Kentucky Legislature.
Davis is also liable for more than $250,000 in attorney and court costs for the couple.
In this excerpt, to provide for use of reading, ellipses are used only to omit the technical legal citations. The substance of the opinion remain unchanged.