Many Americans strongly support marriage for same-sex couples — 68% nationwide, according to a recent Gallup poll. There is a partisan divide, though, and a small but loud cohort is trying hard to turn back the clock, as with so many of our country’s advances toward equality, liberty and justice for all.
Momentarily reclaiming this group’s spotlight is former Kentucky county clerk Kim Davis, who recently filed an attention-seeking request that the Supreme Court overturn Obergefell v. Hodges, the 2015 ruling that granted marriage equality for same-sex couples.
Her petition, likely the first direct request of its kind, does not clearly tee up significant legal issues for the Roberts Court, mired as it is in her very particular set of facts, and most commentators agree the court is unlikely to take the case. (At an earlier stage of the litigation, in 2020, Justice Clarence Thomas specifically noted that her case did not “cleanly present” questions about Obergefell to the court.)
Instead, her petition may be best understood as part of a broader effort to drag marriage equality down in the public domain.
Davis says outright that the court should reverse itself on marriage just like it did on abortion.
Some in this effort, like the Southern Baptist Convention, America’s largest Protestant denomination, are prioritizing “overturning of laws and court rulings, including Obergefell v. Hodges” because they “defy God’s design for marriage and family.” Others, including state lawmakers, have expressed concern about conscience-objections and the need to “preserve and grow our human race.”
Davis takes a different tack in speaking to the court. She sprinkles in plenty of quotes from the Obergefell dissents, with special attention to Chief Justice John Roberts, who said that the court had overstepped its role and that the marriage ruling “had no basis in the Constitution.” But her core theme is that Obergefell should be tied to the coattails of the court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which withdrew a half-century of constitutional protection for abortion.
Davis, whose responsibilities as clerk in Rowan County, Kentucky, included issuing marriage licenses, had her first taste of fame back in 2015 when she brusquely refused a marriage license to a gay couple 10 days after the court’s Obergefell ruling, saying she was acting “under God’s authority.” When one of the prospective spouses said to Davis that she had likely given marriage licenses to “murderer[s], rapists, and people who have done all kinds of horrible things,” Davis responded by saying “that was fine because they were straight.”
Her new petition comes after a decade of litigation in which Davis repeatedly lost her argument that the Constitution protected her treatment of the couple. She offers the Supreme Court two points about her specific situation, but the petition’s main event is in her third question presented. There, in asking the court to decide whether Obergefell “and the legal fiction of substantive due process” should be overturned, the petition most plainly tries to sink marriage equality by tying it to the court’s Dobbs ruling.
For starters, she says outright that the court should reverse itself on marriage just like it did on abortion. She acknowledges this would require the court to disregard its commitment, called stare decisis, to stick with its past rulings except in very limited circumstances, but she maintains that, like in Dobbs, the circumstances justify an about-face here.
Then she takes a big legal swing, saying the Constitution does not actually prohibit the government from interfering with rights we have long considered fundamental to individual liberty, such as the right to privacy or to marry.
This legal doctrine, known as substantive due process, is the foundation not only for Obergefell, but also for many of the court’s landmark rulings that protect Americans' day-to-day lives from government interference, including on contraception access for married couples, sodomy laws and parental rights, among others. And it is this doctrine that had long protected access to abortion until the court found, in Dobbs, that it did not, holding instead that “a right to abortion is not deeply rooted in the Nation’s history and tradition.”
It’s important to see the petition through a wider lens as a call to action for those who would intertwine restrictions on abortion with restrictions on same-sex marriage.
But although Davis urges that getting rid of Obergefell is a logical follow-on to the court’s abortion ruling, the court in Dobbs said otherwise. Indeed, Justice Samuel Alito addressed this point specifically in the majority opinion: “To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” and that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Likewise, Justice Brett Kavanaugh, who joined the Dobbs majority, wrote his own concurring opinion in which he referred directly to Obergefell and a handful of other substantive due process cases, saying that the decision in Dobbs “does not threaten or cast doubt on those precedents.”
To be sure, we cannot predict what the court will do, and there are many reasons to be skeptical of its promises related to Dobbs' limited scope. Add to that Justice Thomas repeatedly urging his colleagues to reconsider all of the court’s past cases that rely on substantive due process, including Obergefell, as well as the 60-year-old landmark case, Griswold v. Connecticut, that struck down a Connecticut law criminalizing the use of contraception, including by married couples.
Still, especially in this time of often startling political instability, it is important to see Davis’ petition for what it is as a legal matter — thin and weak in its claims and, as a result, just one of thousands of Supreme Court petitions likely to be denied in the coming term.
But it is also important to see the petition through a wider lens as a call to action for those who would intertwine restrictions on abortion with restrictions on same-sex marriage. This reminds us, once again, that the price of liberty — including in areas such as marriage and reproductive health care, long thought to be constitutionally protected from undue government interference — is everyday engagement and eternal vigilance.