Is Same-Sex Marriage In Danger At SCOTUS?
Next week, the Supreme Court will consider a petition asking it to overrule Obergefell v. Hodges (2015), which made gay marriage the law of the land.
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One week from today, on Friday, November 7, the U.S. Supreme Court will consider whether to grant certiorari in Davis v. Ermold. The Davis in Davis v. Ermold is Kim Davis, the Kentucky county clerk who became (in)famous in 2015 for refusing to issue marriage licenses to same-sex couples—notwithstanding the Court’s decision in Obergefell v. Hodges, which held that the Fourteenth Amendment requires states to issue marriage licenses to two people of the same sex.
Davis’s petition, filed on July 24, is an appeal from her loss before the Sixth Circuit. For a discussion of that Sixth Circuit case—which arose from long-running civil litigation between Davis and a gay couple she denied a marriage license to, who then sued her (successfully) under 42 U.S.C. § 1983—please see my August post.
Here are the three questions presented in her cert petition:
Whether the First Amendment Free Exercise Clause provides an affirmative defense to tort liability based solely on emotional distress damages with no actual damages….
Whether a government official stripped of Eleventh Amendment immunity and sued in her individual capacity based solely on emotional distress damages with no actual damages is entitled to assert individual capacity and personal First Amendment defenses….
Whether Obergefell v. Hodges, 576 U.S. 644 (2015), and the legal fiction of substantive due process, should be overturned.
Yes, that’s right: Kim Davis wants the Supreme Court to overrule Obergefell and hold that the Constitution doesn’t protect gay marriage. Marriage equality would then, like abortion after Dobbs, return to the states. (Davis isn’t arguing that the constitution prohibits states from recognizing same-sex marriages—and she graciously concedes in her brief that “already-married couples get to stay married.” Thanks?)
The gay couple who won $100,000 in damages from Davis—David Ermold and David Moore, hereinafter “the Davids”—waived their right to respond to Davis’s petition. Why? As explained by Sarah Isgur in the latest episode of Advisory Opinions, waiving one’s right to respond is “a super baller, mic-drop move,” which sends the following message to SCOTUS: “we don’t even have to deign to acknowledge this, because it’s obviously so stupid on its face.”
Davis’s petition was distributed to the justices’ chambers on August 6, for consideration at their September 29 conference. But on August 7—i.e., only one day after distribution—the Court directed the Davids to file a response. And that was the development that launched a thousand anxious tweets Bluesky posts, from progressives fearing an imminent overruling of Obergefell. (It also triggered a spike in the odds of an Obergefell overruling in the Kalshi prediction market.)
I agree with Isgur that the Court requiring a response was a significant development worthy of news coverage. But I’d underscore what Amy Howe pointed out on SCOTUSblog: requesting a response requires the vote of only a single justice—e.g., Justices Clarence Thomas or Samuel Alito (the Court doesn’t disclose who).
The additional briefing—the Davids’ response, plus Davis’s reply—moved back the timetable for consideration of Davis’s cert petition, which will now take place at the justices’ November 7 conference. As explained by Howe, a denial of the petition could come as soon as Monday, November 10—but if the Court (eventually) grants cert, we might not know that for a while. Why? “As a general practice, the Court does not grant review without considering a case at at least two consecutive conferences, and this is the first conference in which Davis’s challenge will be considered.”
So… do I think the Court will grant the petition and overrule Obergefell?
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No, I do not. I explained my logic back in my August post, as well as to Elie Honig for his New York Magazine column:
Davis did not challenge Obergefell’s constitutionality in the trial court; she only added it as an afterthought during the appeal. The Supreme Court typically won’t consider arguments that the parties did not fully argue below, and [Justices] Kavanaugh and Barrett are notably exacting about procedural niceties.
See also Point II of the Davids’ response (pp. 27-29), arguing that (1) “Davis has waived any request to overrule Obergefell,” having previously stated in this litigation that she “did not ‘want[] to relitigate the Supreme Court’s decision in Obergefell,” and (2) “[t]his case would be a poor vehicle for overruling Obergefell, even if the issue had been preserved,” because it would require the Court to first address “novel and difficult questions” about § 1983 liability.
I agree with the Davids, and I stand by my prediction. I don’t rule out the possibility, though, of a dissent from the denial of cert by Justice Thomas or Justice Alito—more likely addressing Davis’s First Amendment defenses to the § 1983 lawsuit, rather than urging an overruling of Obergefell.
For arguments that Obergefell might actually be in danger, see this Politico piece by Professor Kimberly Wehle, “5 Reasons the Supreme Court Might Change Its Mind on Same-Sex Marriage.” Her reasons are as follows:
“[T]he configuration of justices on the Supreme Court is obviously different now than it was when Obergefell was decided in 2015.”
“[T]hree of the justices who are still on the Court wrote their own spirited dissents to Obergefell.”
“[I]n the intervening years, Dobbs happened. With it, the majority adopted the so-called ‘history and tradition’ test as the leading standard for determining whether a constitutional right that’s not stated expressly in the text of the Constitution is nonetheless protected.” And applying that standard, “Obergefell presents a far easier case for reversal than Roe.”
“Davis’s claim that she was denied the right to freely exercise her religion works in her favor because the current majority is on an unmistakable trajectory of elevating the First Amendment over other constitutional and legal rights.”
“[A]s Dobbs made clear, this Court is hardly queasy about overruling longstanding precedent.”
For a rebuttal of sorts, see this USA Today piece by David Urban, “Marriage equality isn’t in danger, but Democrats need you to stay afraid.” A Republican strategist and former adviser to the 2016 Trump campaign, Urban cites polling data—e.g., 72 percent of Americans believe that same-sex couples should have the right to marry, and 68 percent support Obergefell specifically—to argue that when it comes to marriage equality, “Americans have moved on, especially Republicans.”
Readers, what do you think? Please vote in this poll:
And please discuss in the comments to this post—which, as a Notice & Comment post, allows comments by any and all readers, not just paid subscribers. Thanks!
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I think you need to add an option to the poll. My vote is “yes, but not with this case” (for the reasons you noted).
Greetings! Much appreciate your post and you, as always, presenting cleanly arguments from both sides. Much of the media and legal publications these days take pleasure in delivering sound-bites / outrage to energize their active base, rather than deliver the facts as they are. Yet, putting that to the side, Obergefell very likely will not, and should not, be overruled in this case. I am not yet an attorney, but I am wondering how / to what extent justice Kennedy's recent comments on his book tour still stand and have purchase with the justices (reliance plus societal impact?) Plus, isn't there an issue here with the equal protection clause as well?
While I am here, I am also troubled with another part of question 3 in this petition, the "fiction" of substantive due process. If Kim Davis really wants Obergefell to be throne out, is it truly tactful to add such loaded terms into the question presented? Contrast that wording there to this: "Whether all pre-viability prohibitions on elective abortions are unconstitutional Take that for what it is, and what resulted.
Finally, unlike in the pre-dobbs landscape, has there been any movement by state legislatures (save Idaho) to express objection to Obergefell? At the very least, one can and did argue that red states had weighed in strongly in opposition to Roe / Casey before they were tossed. Has the same happened here?
In closing, I do wish that certain media outlets would take more time to study SCOTUS procedure / filings. I fear that an ignorance of such issues, plus a need to get more views, ratings and clicks, causes the media to craft provocative headlines on this issue that distort what is actually happening. Thank you.
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