Kim Davis, the former Kentucky county clerk who was briefly jailed in 2015 for refusing to issue marriage licenses to same-sex couples, asked the Supreme Court on Thursday to revisit its landmark decision in Obergefell v. Hodges, which effectively legalized same-sex marriage nationwide and celebrated its 10th anniversary in June.
Davis’s attorneys at the Christian nonprofit Liberty Counsel asked the court in a 90-page filing to review a March ruling by the 6th U.S. Circuit Court of Appeals upholding a lower court’s finding that Davis violated David Ermold and David Moore’s constitutional right to marry when she denied them a marriage license in 2015, shortly after the Supreme Court issued its Obergefell decision.
A federal jury awarded the couple $100,000 in damages in 2023, and a federal judge ordered Davis last year to pay Ermold and Moore an additional $260,000 in attorneys’ fees.
Davis argued in 2015 that granting the couple a marriage license would have violated her religious beliefs as a born-again Christian and “God’s definition of marriage.” She and her legal team have argued throughout a decadelong legal battle that, in denying the license, Davis was protected by her First Amendment rights to freedom of speech and religion.
In March, a three-judge panel for the 6th Circuit ruled that Davis cannot raise a First Amendment defense in the case “because she is being held liable for state action, which the First Amendment does not protect.”
Liberty Counsel is asking the Supreme Court to overturn both the 6th Circuit decision and the high court’s ruling in Obergefell.
“Kim Davis’ case underscores why the U.S. Supreme Court should overturn the wrongly decided Obergefell v. Hodges opinion because it threatens the religious liberty of Americans who believe that marriage is a sacred union between one man and one woman,” said Mat Staver, Liberty Counsel’s founder and chair.
The group’s petition argues that the court should revisit and reverse its Obergefell decision “for the same reasons articulated in Dobbs v. Jackson Women’s Health Center,” the case that led to the overturning of Roe v. Wade. “Obergefell was wrong when it was decided and it is wrong today because it was grounded entirely on the legal fiction of substantive due process.”
Bill Powell, counsel for Ermold and Moore, told The Hill in an email the Supreme Court is unlikely to take up Davis’s case.
“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,” he said.
The high court declined to intervene in Davis’s case in 2020. Justices Samuel Alito and Clarence Thomas, conservatives who dissented from the court’s majority opinion in Obergefell, said they agreed with the court’s decision not to accept Davis’s appeal but used the occasion to renew their objections to its same-sex marriage decision.
“Davis may have been one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last,” wrote Thomas, joined by Alito. “Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws.”
Davis’s appeal to the Supreme Court comes as it faces calls from Republican lawmakers to overturn Obergefell. In June, Southern Baptists voted overwhelmingly to approve a resolution endorsing a ban on same-sex marriage and calling for the court to reverse its decision.
National support for same-sex marriage remains at record highs, though a May Gallup poll showed Republican support for marriage equality falling to 41 percent, the lowest in a decade. In a separate survey conducted by three polling firms in June, 56 percent of Republican respondents said they support same-sex marriage.
