Supreme court and gay marriage

During his first term in office, President Donald Trump appointed Gorsuch (to replace Justice Antonin Scalia, the fourth dissenter) and Justices Brett Kavanaugh and Amy Coney Barrett.

Whether at least five of these six justices would vote to overturn Obergefell remains to be seen.

The justices are scheduled to consider Davis’ case at their private conference on Nov.

7. Hodges, Davis v. “The case does not actually present, in a square and clean way, the question the coverage has suggested it does.”

Mat Staver, head of Liberty Counsel, the conservative legal group representing Davis, said his group won't give up and predicted ultimate success.

“It is not a matter of IF but WHEN Obergefell will be overturned,” he said in a statement.

First, they wrote, she didn’t make the “current version” of her First Amendment argument until relatively late in the game – in her reply in the 6th Circuit, “filed nine years into the case. Moore and Ermold’s case continued, and in 2023 a jury awarded them damages of $50,000 apiece.

Davis appealed to the U.S. Court of Appeals for the 6th Circuit, where she argued (among other things) that she could not be held liable because issuing Moore and Ermold a marriage license would have violated her right to freely exercise her religion.

Earlier this year, the 6th Circuit rejected Davis’ appeal.

By waiting so long to raise this argument,” they said, “Davis deprived” them, as well as the lower courts, “of a fair opportunity to address it.”

Second, Moore and Ermold continued, Davis had waived her right to challenge Obergefell, because she “‘expressly stated that she did not “want[] to relitigate the Supreme Court’s decision in Obergefell.”’” “The Court should hold her to that representation,” the men wrote.

In deciding whether to grant a particular petition for review, the justices take a variety of factors into account.

"It would have to come up as a lower court holding that Obergefell binds judges to accept some other kind of non-traditional marital arrangement."

Ruling wouldn't invalidate existing marriages

If the ruling were to be overturned at some point in the future, it would not invalidate marriages already performed, legal experts have pointed out.

A federal appeals court panel concluded earlier this year that the former clerk "cannot raise the First Amendment as a defense because she is being held liable for state action, which the First Amendment does not protect."

Davis, as the Rowan County Clerk in 2015, was the sole authority tasked with issuing marriage licenses on behalf of the government under state law.

"Not a single judge on the U.S.

Court of Appeals showed any interest in Davis's rehearing petition, and we are confident the Supreme Court will likewise agree that Davis's arguments do not merit further attention," said William Powell, attorney for David Ermold and David Moore, the now-married Kentucky couple that sued Davis for damages, in a statement to ABC News.

A renewed campaign to reverse legal precedent

Davis' appeal to the Supreme Court comes as conservative opponents of marriage rights for same-sex couples pursue a renewed campaign to reverse legal precedent and allow each state to set its own policy.

At the time Obergefell was decided in 2015, 35 states had statutory or constitutional bans on same-sex marriages, according to the National Conference of State Legislatures.

As a statistical matter, Davis may face tough odds on convincing the Supreme Court to grant review, but the real question is whether there are four votes to revisit Obergefell (and five to overrule it).

In 2015, Davis was the clerk of Rowan County, Kentucky. The 2022 Respect for Marriage Act requires the federal government and all states to recognize legal marriages of same-sex and interracial couples performed in any state -- even if there is a future change in the law.

Davis first appealed the Supreme Court in 2019 seeking to have the damages suit against her tossed out, but her petition was rejected.

"Just who do we think we are?"

When the court − which now has a 6-3 conservative majority − overturned Roe v. “The day will come. Justices weigh revisiting landmark issue

Her appeal led to speculation about whether the court – which has become more conservative since it narrowly struck down same-sex marriage bans – would take another look at it.

"Today, five lawyers have ordered every state to change their definition of marriage," Chief Justice John Roberts wrote in his 2015 dissent.

Davis is seen as one of the only Americans currently with legal standing to bring a challenge to the precedent.

"If there ever was a case of exceptional importance," Staver wrote, "the first individual in the Republic's history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it."

Lower courts have dismissed Davis' claims and most legal experts consider her bid a long shot.

She contended that she had appeared before the court as an individual — “not as a state actor and not as a government official with some form of sovereign or qualified immunity.” And in that capacity, she argued, she could not be “on the hook for tort liability as a person, yet have no personal defenses” – such as the First Amendment – “available to her.”  

Davis also asked the justices to overrule their decision in Obergefell, arguing that a right to same-sex marriage “had no basis in the Constitution” and left her “with a choice between her religious beliefs and her job.” “If ever there was a case of exceptional importance,” she asserted, “the first individual in the Republic’s history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it.”

After Davis filed her petition for review, Moore and Ermold initially waived their right to respond.

It reasoned that Davis is protected by the First Amendment when she is a private citizen, but she was acting on behalf of the government when she denied Moore and Ermold’s marriage license – an action that was not protected by the First Amendment. Nearly one in five of those married couples is parenting a child under 18.

Since the Obergefell decision, the makeup of the Supreme Court has shifted rightward, now including three appointees of President Donald Trump and a 6-justice conservative supermajority.

Chief Justice John Roberts, among the current members of the court who dissented in Obergefell a decade ago, sharply criticized the ruling at the time as "an act of will, not legal judgment" with "no basis in the Constitution." He also warned then that it "creates serious questions about religious liberty."

Davis invoked Roberts' words in her petition to the high court, hopeful that at least four justices will vote to accept her case and hear arguments next year.