A broad swath of legal experts told Salon that they doubt that former Kentucky clerk Kim Davis’ longshot strategy to get the Supreme Court to overturn its pivotal 2015 same-sex marriage ruling will work in one fell swoop – but they say Davis’ argument could fuel future attacks on LGBTQ+ rights down the road.
Davis, a former Rowan County clerk who believes same-sex marriage violates her religious beliefs, refused to issue marriage certificates to same-sex couples with her signature on it after the Supreme Court’s 5-4 ruling in Obergefell v. Hodges.
Even as legal experts express optimism that Davis’ case alone won’t overturn same-sex marriage, they said it’s grown precarious to try and predict the conservative supermajority’s next steps.
“I always expected it to come back, and I knew she would have something to do with it.”
“Nothing is safe from the attack of the conservative majority on this court,” University of Chicago Law School professor Mary Ann Case said. “They can cut precedents down at will. And that means it’s hard to know what the law is and will be.”
Nine years later, Davis’ legal team is still in court fighting $100,000 in damages she owes to a same-sex couple – and now her lawyers are fulfilling their promise to argue that the Supreme Court should overturn Obergefell. Her lawyers are pointing to the court’s 2022 Dobbs decision, which overruled the 50-year-old precedent set by Roe v. Wade and found that abortion was not “deeply rooted in the nation’s history and tradition.”
“Obergefell was wrong when it was decided and it is wrong today,” reads the 73-page brief filed on Davis’ behalf by the evangelical nonprofit Liberty Counsel in the U.S. Court of Appeals for the Sixth District this week.
THE FAMILIES WHO SUED FOR EQUAL RIGHTS
Over a dozen same-sex couples had sued seeking the right to have recognized marriages in the lawsuits consolidated into the Obergefell case, which held that the Fourteenth Amendment requires states to license and recognize same-sex marriage.
The plaintiffs included Jim Obergefell, who got married in 2013 in Maryland to his late husband John Arthur, who was diagnosed with amyotrophic lateral sclerosis, or ALS.
The lack of a protected right to same-sex marriage cast a shadow on their life together and beyond. He said when Arthur ended up in a Catholic hospital in the nineties for respiratory arrest, he worried: “Had they not been able to save him, I would have been completely prevented from saying goodbye to him, to being part of the decision-making process.”
Once they returned to Ohio after getting married, they learned that Arthur’s death certificate couldn’t list Obergefell as his surviving spouse.
And as Arthur declined, they learned his grandfather had specified that only direct descendants and their spouses could be buried or memorialized in their family plot.
“So, here’s a spot to inter his ashes or to memorialize him,” Obergefell recalled to Salon. “Had I wanted the spot next to it, they, the cemetery, were well within their rights to say: ‘No, we can’t, sorry, Jim, we can put John there, but not you.’”
Joseph Vitale, a reinsurance industry professional who was also part of the Obergefell cases, said that when he and his husband finalized their adoption of their son in New York, Ohio declined to provide them a birth certificate that listed both Vitale and his husband Rob Talmas as the boy’s father.
“It was a very good outcome for my son, because now he realizes what an adoptive parent will go through to make sure that that son is legally recognized,” Vitale said, adding: “My kid walks around with his head, you know, held high as a result of that court case.”
Obergefell said since the Supreme Court ruling came down, he’s talked to thousands of people who have cheered its extension of human rights.
“People showing me photos of their spouse, their husband, their wife, their children, who are queer,” he said. “And the young woman telling me that if it weren’t for marriage equality, if it weren’t for Obergefell v. Hodges, she would have committed suicide. All it does is give people a sense of belonging, a sense of family, the same rights and protections as others, and it gives them hope and a reason to keep living.”
He said that learning of the latest twist in Davis’ legal fight angered and terrified him.
Particularly, he said, at a time when the conservative supermajority on the Supreme Court has veered to overturning established precedents.
“The pushback against that, the fight to undermine our right to marry the person we love, it started immediately,” Obergefell said. “And this is just a continuation of that, and now it is being supported and directed by Supreme Court justices.”
He added: “They clearly don’t care about precedent, and they will turn whatever they personally not, not based on truly the law, but based on their personal attitudes, beliefs and prejudices, they will overturn laws. They will overturn previous decisions. And every right we enjoy in this country is at risk.”
Robbie Kaplan, the lawyer who successfully argued the 2013 Supreme Court ruling that struck down part of the 1996 Defense of Marriage Act, told Salon that “it is hardly a surprise” that Davis would try to overturn Obergefell “given the invitation to do so in Dobbs.”
Still, Kaplan said “a ruling like that would be shocking, even for this Supreme Court.”
“The equal dignity of gay people is too firmly established in the hearts and minds of the overwhelming majority of Americans,” Kaplan said. “But that doesn’t mean that the Supreme Court won’t continue to chip away at the right by allowing people like Kim Davis, who hold religious beliefs against marriage equality, to refuse to bake cakes, create websites, or even provide marriage licenses to gay couples.”
WHERE THE SUPREME COURT STANDS
Obergefell and others said they have had to turn to the transcripts of Supreme Court justice confirmation hearings and dry, sometimes long-winded opinions, concurrences and dissents for insight into whether their right to be a family could disappear.
Three sitting justices dissented from the Obergefell ruling and slammed it as legislating from the bench: Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas.
In the decision overturning Roe v. Wade, Alito chastised dissenting judges for warning the ruling would threaten rights to contraception, same-sex marriage and sexual conduct with members of the same sex.
“This obsession that the religious right has on queer people – why is this such a focus?”
“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” reads the majority opinion authored by Alito.
Alito wrote that “rights regarding contraception and same-sex relationships are inherently different from the right to abortion,” which he said uniquely involves “potential life.”
Justice Brett Kavanaugh specifically denied that the Dobbs decision overrules, threatens or casts doubt on the contraception and marriage precedents – including the right to interracial marriage.
But the three dissenting judges said “no one should be confident” that the Dobbs opinion won’t impact cases linked to “other settled freedoms involving bodily integrity, familial relationships and procreation.”
“The majority could write just as long an opinion showing, for example, that until the mid-20th century, ‘there was no support in American law for a constitutional right to obtain [contraceptives],'” reads the dissent by Justices Sonia Sotomayor and Elena Kagan and former Justice Stephen Breyer.
Roberts also dissented from the part of the majority opinion overturning Roe. He criticized the majority for “repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed.”
Still, Obergefell pointed out that Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh all acknowledged that Roe v. Wade – and Obergefell – was a precedent in their confirmation hearings, and then later joined the majority Dobbs ruling.
Gorsuch, Barrett and Kavanaugh also talked about how courts should carefully weigh how overruling a precedent could impact the lives of people who rely on them.
“So why on earth should we believe anything they say about any other existing decision, any other right that has been affirmed and that we enjoy in this country?” Obergefell questioned.
He said religious beliefs shouldn’t allow discrimination against others – and questioned how Davis would have felt if a clerk who didn’t believe in divorce had cited her religious beliefs when refused to issue her a marriage certificate for her second, third or fourth marriage.
“This obsession that the religious right has on queer people – why is this such a focus?” he asked. “It feels like their every thought, they wake up, and all they’re thinking about queer people, what they do in their home, their families, what rights they have or don’t have. What is the obsession? And what happened to the golden rule, treat others the way you’d like to be treated?”
WHAT WILL THE SUPREME COURT DO?
In all, 14 legal experts told Salon that there’s little evidence that a majority of justices on the conservative Supreme Court are inclined to overturn the ruling – in part because of the particularities of Davis’ case.
“Whatever may come of Obergefell in the long run in this case, there’s virtually no chance, bordering on zero, that the court would use this as the vehicle to reconsider Obergefell,” said University of Louisville Louis D. Brandeis School of Law professor Samuel Marcosson.
University of California Davis School of Law professor Aaron Tang said Davis’ argument simply doesn’t test Obergefell.
“This case doesn’t squarely present the question about whether a state can constitutionally define marriage between man and woman without violating the 14th Amendment,” he said. “This case is about whether a county clerk could be sued for money damages for denying a marriage license.”
Conservative groups trying to invoke Thomas’ concurrence have faced “the procedural problem of how do you get that issue back up to the court,” Georgetown Law professor Paul Smith said.
“There’s no state out there that’s refusing to marry same sex couples because they’ve been told by the Supreme Court they have to,” Smith said. “This is an indirect way to get Obergefell up before the Supreme Court.”
George Washington Law emeritus professor Ira Lupu said the bold legal strategy fuels Liberty Counsel’s coffers.
“They make money by fighting for people like Kim Davis, and the case gets a whole lot more attention when they say that – not just that she shouldn’t have to pay damages or attorney fees,” Lupu said.
Liberty Counsel did not respond to Salon’s request for comment.
LONG-TERM FIGHT AGAINST SAME-SEX MARRIAGE
“By the time she gets it to the Supreme Court, Trump might have appointed some new justices. And then she would be likely to do better.”
Meanwhile, legal experts warned that Davis’ legal gambit against Obergefell – based in part on the Supreme Court’s ruling overturning Roe v. Wade. – could help lay the groundwork for future attacks on the right to same-sex marriage, as well as other rights.
“In some ways, the strategy around abortion by conservatives for a very long time was to hollow out rights protected by Roe and Casey,” Yale Law School professor Douglas NeJaime said, referring to abortion rulings. “I think you see that happening with Obergefell. Is there a point at which the hollowing out no longer seems to be the main strategy and the outright refutation is?”
Marcosson said he’s worried a sympathetic appeals judge could reject Davis’ latest appeal while at the same time arguing that in light of Dobbs, Davis raises “serious questions” about the validity of Obergefell.
“It could begin to plant the seeds of the courts chipping away at Obergefell, and that I think is what the lawyers for Kim Davis could be thinking,” he said.
Other court cases have already called into question Obergefell, experts warned.
In the Supreme Court’s 2021 Fulton v. City of Philadelphia case, the justices said that Philadelphia violated the First Amendment’s Free Exercise Clause by refusing to contract with Catholic Social Services to provide foster care services unless the provider agreed to certify same-sex couples as foster parents.
“The Supreme Court says you have to allow that agent to openly discriminate against same-sex marriages, which is contrary to the holding of Obergefell,” Yale Law School professor William Eskridge said. “it’s not an overrule, it’s a chip based on religious liberty.”
Koppelman said it’s possible that Davis’ arguments eventually reach an even more sympathetic majority on the court, if Trump is elected.
“We know she has some sympathetic ears on the Supreme Court,” he said. “By the time she gets it to the Supreme Court, Trump might have appointed some new justices. And then she would be likely to do better.”
RIGHT TO RELIGIOUS ACCOMMODATIONS
Several experts said they thought it’s more likely for the Supreme Court to take up Davis’ religious accommodation argument.
Davis – who served five nights in jail for defying a federal court order – has unsuccessfully argued she had qualified immunity protecting her from the couples suing her.
Davis has also argued that under state law, she should have received religious accommodation from having to issue marriage certificates after the 2015 ruling.
Case called Davis’ religious accommodation argument “one of her better and more important arguments.”
“Kim Davis has tried these same arguments with the appellate court, and the Supreme Court, many times over the last decade, and has failed every time.”
Davis has argued that Kentucky has a history of accommodating clerks who wanted to opt out of issuing hunting and fishing licenses. Former Gov. Steve Beshear also let his attorney general opt out of defending a marriage law. And by November 2015, a gubernatorial executive order allowed clerks to remove their names from marriage certificates.
Case and other observers said Davis could win her fight by pointing to pandemic-era Supreme Court rulings boosting religious liberties.
“In the decade since she first asked for this accommodation, the Supreme Court has gotten much more constitutionally aggressive about who is entitled to a religious accommodation under what circumstance,” Case said.
Northwestern Law professor Aaron Koppelman said: “The law of religious liberty has become twisted enough that one can make that claim just about any time.”
Still, Koppelman said she still might not win on religious accommodations.
“In Kim Davis’s case, the state isn’t ordering her to do anything. This is Ermold suing her because she denied them a marriage license to which she was entitled,” Koppelman said, referring to the plaintiff in the case.
And legal experts also pushed back on the implications of allowing government officials to selectively choose which laws to carry out.
“It’s a really radical notion – the idea that she should have a constitutional right to religious freedom that gives her the power as a government official to decide which law she’s going to enforce, which people she’s going to serve and not serve,” Georgetown Law professor Paul Smith said. “That would be an unprecedented expansion of the First Amendment into an area where it really makes no sense. Police officers only have to enforce laws consistent with their religion? What about people in government office who say their religion tells them Black and white people shouldn’t work together?”
THOMAS’ INVITATION TO DAVIS
Davis hasn’t had a lot of luck before the Supreme Court so far.
“Kim Davis has tried these same arguments with the appellate court, and the Supreme Court, many times over the last decade, and has failed every time,” said University of Louisville Louis D. Brandeis School of Law professor and civil rights lawyer Dan Canon.
For starters, the Supreme Court in 2015 rejected Davis’ request to allow her to continue refusing marriage licenses.
And in 2020, Justice Clarence Thomas authored the Supreme Court’s statement denying Davis’ request for the court to weigh in on her petition that argued the Sixth Circuit was reading too much into Obergefell.
Thomas said Davis’ petition “implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them.”
Still, Thomas spoke strongly against Obergefell, saying: “the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text.”
Then in the 2022 Dobbs decision, Thomas called for the Court to reconsider cases including Obergefell and other precedents that concern due process rights.
He also included Griswold v. Connecticut, which protects contraceptive rights, and Lawrence v. Texas, which protects the right to engage in private sexual acts.
Thomas said the Dobbs’ decision didn’t require justices to decide whether “our entire Fourteenth Amendment jurisprudence must be preserved or revised.”
But, Thomas said: “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
“Justice Thomas issued an invitation to advocates – like the advocates in this case – to make these claims,” Franke said. “They heard that invitation, and they’re doing it.”
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ATTACKS ON THE FOURTEENTH AMENDMENT
For years, there’s been controversy about the extent to which a single sentence in the Fourteenth Amendment protects constitutional rights, what those rights are – and which part of the sentence protects what.
That sentence reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
For nearly 60 years, a body of Supreme Court cases have protected constitutional rights based on definitions of due process, liberty and equal protection under the Fourteenth Amendment.
Originalists including Thomas, who believe the text of the Constitution is paramount, have blasted the Supreme Court’s reliance on due process rights in particular.
Thomas has said substantive due process “lacks any basis in the Constitution” and amounts to judicial activism.
“In practice, the Court’s approach for identifying those ‘fundamental’ rights ‘unquestionably involves policymaking rather than neutral legal analysis,’” Thomas wrote.
“If they would have the stomach, the chutzpah, the nerve to overturn Obergefell – that would be a volcano you’d be setting off.”
Other landmark Supreme Court rulings that rely on due process rights include Loving v. Virginia, which struck down state laws barring interracial marriages.
In Loving, the justices held that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The majority opinion also struck down interracial marriage bans based on concerns about equal protection.
In his dissent to Obergefell, Thomas wrote that the suggestions that “anti-miscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate.”
Thomas said that Loving did not define marriage as “the union of a man and woman of the same race.”
Thomas argued that anti-miscegenation laws were passed as part of laws authorizing slavery.
“Laws defining marriage as between one man and one woman do not share this sordid history,” Thomas wrote in a footnote. “The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history.”
For Obergefell himself, he said he believes that Thomas twists his legal arguments to support interracial marriage while excluding same-sex marriage – all based on his religious belief.
“His own marriage exists solely because of Loving versus Virginia, so he merely ignores that,” Obergefell said.
The Due Process Clause served as a “primary basis for Justice Kennedy’s cases on gay rights. including Obergefell – the right to decide who your spouse is, which your government cannot interfere with,” Smith said.
“That’s always been an argument the conservatives on the court don’t like very much,” Smith said.
Marcosson said the court could use the “deeply rooted” logic in Alito’s Dobbs opinion to revisit a whole host of privacy cases – including the same-sex marriage ruling.
“The logic was about whether a right was grounded in history and tradition and recognized at the time of the Constitution or at the very least going back into the 18th and 19th centuries,” Marcosson said. “So all of the modern privacy jurisprudence, whether same-sex marriage or contraception, is just as modern in any meaningful way as Roe v. Wade was. So the logic of the reason the court said Roe was wrong also could at some point call into question Obergefell.”
Smith said at the end of the day, the justices could simply protect same-sex marriage rights under the 14th Amendment’s Equal Protection clause instead – a move that could be harder for conservative justices to argue against.
“There’s a good reason to think if they ever reach the question that they say: Obergefell came out the right way for the wrong reasons,” Smith said.
Smith said the justices could rely on their reasoning in the 2020 case Bostock v. Clayton County, which held that an employer who fires a worker for being gay or transgender violates Title VII of the Civil Rights Act of 1964.
Following Thomas’ dissent, Congress passed the Respect for Marriage Act, which requires all U.S. states and the federal government to recognize same-sex and interracial marriages.
“Even if it was overruled, what the Respect for Marriage Act says is that states are not required to marry people if they don’t want to – but they’re required to respect marriages from other states,” Smith said. “So if Kentucky stopped marrying same-sex couples, they could go across the river to Ohio. It’s another reason for the court to say: ‘Why do we want to get into this?’”
OBERGEFELL’S FAR-REACHING IMPACT
In 2022, nearly 1.3 million same-sex households lived in the U.S. – including about 740,500 married couples, according to an analysis of U.S. Census data by Salon.
The number of married same-sex couples has more than doubled from nearly 335,000 in 2014.
Legal experts agreed that overruling the right to same-sex marriage would have wide-ranging consequences for families nationwide – and said that justices are traditionally wary to overrule precedents that could cause chaos.
“Under this Supreme Court, at this moment in time, with Obergefell 10 years old, if they would have the stomach, the chutzpah, the nerve to overturn Obergefell – that would be a volcano you’d be setting off,” Lupu said.
“Couples who got married, their rights, creditors, banks who had mortgages,” Marcosson said, referring to the far-reaching issues the Supreme Court may want to avoid disrupting.
Overruling Obergefell could create huge headaches for the courts and the government, said Yale Law School professor William Eskridge, who from 1990 to 1995 represented a gay couple suing for recognition of their same-sex marriage.
“It would just open up a hornet’s nest,” Eskridge said. “I don’t think the majority are inclined to. It would create a massive headache for them and the lower courts. What do you do in the states that never have recognized marriage until after Obergefell?”
Eskridge said by late fall 2014, plaintiffs filing federal lawsuits against state bans on same-sex marriage began piling up court victories. As the Supreme Court declined to take up numerous same sex marriage cases, the number of states with marriage equality increased from 19 to about 35.
“What would we do about those federal decisions that came in 2014?” Eskridge said. “Sorting all of that out would require massive federal litigation, and constant business in the Supreme Court.”
The majority opinion in Dobbs called abortion “unique” – which Eskridge said could suggest the Supreme Court would be more reluctant to strike a ruling on same-sex marriages, which lacks the sort of massive opposition campaign pushed by abortion opponents.
“You have a big chunk of the country who thinks it’s murder to have an abortion,” Eskridge said.
In contrast, same-sex marriage may be viewed as “contrary to God’s will.”
“We’ve now had almost 10 years since Obergefell,” he said. “There’s been no locusts, there’s been no disaster… This is not a natural calamity. if you’re pro-life, Roe v. Wade was a calamity. This is one of the worst things to happen in human history.”
Eskridge said he doubted a court that’s faced ethics concerns and punted controversial decisions on abortion cases this year would want to bring any “more heat” on itself by taking up Obergefell.
“Do they really want to spend their time doing that?” Eskridge said. “The short answer is no, and the long answer is not at all.”
Vitale said he remembers standing on a stage outside of the Stonewall Inn in Greenwich Village in the wake of the Obergefell ruling, and declaring: “We won the battle. But the war is not over.”
He said after hearing Davis’ plan, he thought: “Wow, that took a little bit longer than I thought.”
“I always expected it to come back, and I knew she would have something to do with it,” he said.
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