10 years after the Supreme Court extended marriage rights to all same-sex couples, it will consider whether to take a case asking it to over
Devin Dwyer at ABC News:
Ten years after the Supreme Court extended marriage rights to same-sex couples nationwide, the justices this fall will consider for the first time whether to take up a case that explicitly asks them to overturn that decision. Kim Davis, the former Kentucky county clerk who was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple on religious grounds, is appealing a $100,000 jury verdict for emotional damages plus $260,000 for attorneys fees. In a petition for writ of certiorari filed last month, Davis argues First Amendment protection for free exercise of religion immunizes her from personal liability for the denial of marriage licenses. More fundamentally, she claims the high court's decision in Obergefell v Hodges -- extending marriage rights for same-sex couples under the 14th Amendment's due process protections -- was "egregiously wrong." "The mistake must be corrected," wrote Davis' attorney Mathew Staver in the petition. He calls Justice Anthony Kennedy's majority opinion in Obergefell "legal fiction." The petition appears to mark the first time since 2015 that the court has been formally asked to overturn the landmark marriage decision. 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. 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."
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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. Only eight states had enacted laws explicitly allowing the unions. So far in 2025, at least nine states have either introduced legislation aimed at blocking new marriage licenses for LGBTQ people or passed resolutions urging the Supreme Court to reverse Obergefell at the earliest opportunity, according to the advocacy group Lambda Legal. In June, the Southern Baptist Convention -- the nation's largest Protestant Christian denomination -- overwhelmingly voted to make "overturning of laws and court rulings, including Obergefell v. Hodges, that defy God's design for marriage and family" a top priority.
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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. 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. Conservative Justices Thomas and Samuel Alito concurred with the decision at the time.
Just over 10 years after SCOTUS ruled in the Obergefell v. Hodges case, the high court has been asked to overturn the case in Davis v. Ermold. It takes 4 SCOTUS justices to grant cert.
Should the worst come to happen, all existing same-sex marriages will be protected by the Respect For Marriage Act (RFMA).
