Supreme Court to weigh longshot bid to overturn same-sex marriage precedent

By John Fritze, CNN

(CNN) — The Supreme Court will meet behind closed doors Friday to consider a longshot bid to overturn its decade-old same-sex marriage precedent, an appeal that is churning fear among some LGBTQ advocates even though the justices themselves have repeatedly signaled little appetite for reopening the landmark decision.

The pending appeal comes from Kim Davis, a former county clerk from Kentucky who refused to issue marriage licenses after the Supreme Court’s blockbuster 2015 decision, Obergefell v. Hodges, allowed same-sex couples to legally marry. Davis, who has fought her case for years, has directly asked the court to jettison that decision.

“The time has come,” Davis argued in a recent filing, for a “course correction.”

The Supreme Court will meet Friday, like it often does this time of year, to consider which appeals it will hear in coming months and which it will deny. The Davis appeal is one of dozens of cases the justices will consider in that private meeting, and the court could announce as soon as Monday what it will do with the case.

It could also hold the appeal for weeks, which often happens when one or more justices want to write an opinion about a decision to deny a case.

“I am very concerned,” James Obergefell, the namesake of the landmark precedent, told CNN this week. “At this point I do not trust the Supreme Court.”

It is true that today’s Supreme Court is different – and far more conservative – than the one that decided Obergefell a decade ago. Justice Anthony Kennedy, the key swing vote who authored that decision, retired in 2018 and was replaced by Justice Brett Kavanaugh, a far more reliable vote for conservative outcomes.

Justice Ruth Bader Ginsburg, a liberal icon who was also in the Obergefell majority, died in 2020 and was succeeded by Justice Amy Coney Barrett, a conservative.

But despite public criticism of the opinion from a few conservative justices – including a sharply written concurring opinion three years ago from Justice Clarence Thomas, who called on his colleagues to “reconsider” same-sex marriage – plenty of other signs suggest the court is not ready to rethink the issue so soon after deciding it.

As she promoted a new memoir this fall, Barrett was repeatedly asked about Obergefell. While she repeatedly swerved around those questions, she told the New York Times last month there are “very concrete reliance interests” at stake when it comes to same-sex marriage.

One of the factors the Supreme Court considers when weighing the possibility of overturning a precedent is whether Americans have come to rely on the decision. In the case of same-sex marriage, those considerations could include factors like child custody and financial planning.

Justice Samuel Alito also discussed the 2015 decision last month, criticizing it as inconsistent with the originalist legal philosophy that the court’s conservatives today widely embrace. And yet Alito, who dissented in Obergefell, was careful to caution his audience not to read too much into his words.

“In commenting on Obergefell, I am not suggesting that the decision in that case should be overruled,” Alito said during a lecture in Washington, DC.

“Obergefell is a precedent of the court that is entitled to the respect afforded by the doctrine of stare decisis,” Alito said, using the Latin term for the principle of the importance of adhering to precedent.

The Obergefell decision prompted a massive celebration outside the Supreme Court on the day it was decided. That evening, the White House was lit up with rainbow-colored lights. Many same-sex couples rushed into courthouses the next day to wed. Nearly 600,000 same-sex couples have since married, according to the Williams Institute at the UCLA School of Law.

But some religious conservatives saw the decision as a betrayal. Davis, who at the time was the clerk of Rowan County in Kentucky, cited her religious objection to same-sex marriage as justifying her decision to withhold marriage licenses to all couples. She was sued by multiple couples in the county, and a jury awarded $100,000 in damages plus far more in legal fees. After a federal court found she had violated a court order to issue licenses, Davis was also thrown in jail for several days.

While virtually all of the attention around the Davis appeal has focused on her request to overturn Obergefell, the bulk of her case deals with a series of less dramatic questions. In appealing the damages verdict, Davis argues that the First Amendment’s religious protections should shield her from legal liability, particularly since she is no longer a public official. The 6th US Circuit Court of Appeals rejected that argument.

The Supreme Court could, in theory take up that technical – though still important – question and decline Davis’ request to consider overturning Obergefell.

It takes four justices to grant an appeal, but that number belies a practical reality. It takes five for a majority, which means even if there are four justices who want to hear a case, they must consider whether they can find a fifth vote to win.

Perhaps the more important question is whether the Davis petition is an opening salvo in a longer campaign against Obergefell that will slowly build, just like the ultimately successful effort by conservatives to overturn Roe v. Wade. On the one hand, cultural and political winds have shifted significantly on gay marriage in past decades. Three years ago, Congress passed a federal law protecting same-sex and interracial marriage with bipartisan support.

But opposition remains among some religious groups, which have enjoyed significant success at the Supreme Court in recent years.

“If not this case, it’s going to be another case,” said Mathew Staver, the founder and chairman of Liberty Counsel, a religious legal group representing Davis. “In my view, it’s not a matter of if but when it will be overturned.”

Mary Bonauto, a veteran civil rights attorney at GLAD Law who argued the Obergefell case, said she wasn’t surprised by that view.

“I’m not taking my eye off this issue, and neither is my organization,” Bonauto said. “You can never really rest on your laurels because other forces just don’t give up.”

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