A Decade Later, Supreme Court Is Asked to Revisit Same-Sex Marriage Decision

Kim Davis, a Kentucky county clerk once jailed for refusing to issue same-sex marriage licenses, has asked the court to reconsider its landmark 2015 opinion.

Gay Americans celebrated a decade ago when the Supreme Court established a constitutional right to same-sex marriage in a landmark decision.

But the community was shaken several years later when the court’s conservative majority eliminated the constitutional right to abortion, showing its willingness to revisit longstanding precedent. Justice Clarence Thomas used a concurring opinion in the abortion case to urge reconsideration of Obergefell v. Hodges, the ruling that legalized gay marriage nationwide.

Those concerns have turned recently to near panic as the Trump administration has been targeting programs and funding for the L.G.B.T.Q. community, and prominent Democrats have warned that marriage rights for gay people may be at risk. Now, the justices are considering whether to hear a case that would ask them to overturn the 2015 decision, weighing the petition at their private conference on Friday.

It would take the votes of four justices to accept the case. If they decline to hear it, as many legal experts expect, they could announce the denial as soon as Monday. Were the justices to agree to hear the case, a major step, they would likely only do so after considering it in at least two consecutive conferences, the second of which would be on Nov. 14.

The petition before the court was filed by Kim Davis, a former Kentucky county clerk who gained national prominence in 2015 when she defied a court order and refused to issue same-sex licenses because of her religious beliefs. She has asked the Supreme Court to reverse an order requiring her to pay more than $300,000 to a couple denied a marriage license and to overturn the landmark same-sex marriage ruling.

That has sparked alarm. Over the summer, Hillary Clinton, the former secretary of state and Democratic presidential nominee, predicted the Supreme Court “will do to gay marriage what it did to abortion.” She warned in an interview on the podcast Raging Moderates that fewer than half the states would recognize same-sex unions if the court revoked the nationwide right.

Many legal experts, including lawyers who fought for gay marriage, have counseled calm.

Mary Bonauto, who represented James Obergefell at the Supreme Court, said she understood the fear but believed marriage rights were on solid ground.

“I know everything is being thrown up in the air and feels unstable,” Ms. Bonauto said. But she noted that several justices had discussed the importance of maintaining precedents that people have relied on to order their lives in fundamental ways.

The court said in Obergefell that the Constitution guarantees a right to same-sex marriage, calling marriage a “keystone of our social order.” The plaintiffs in the case, the court said, were seeking “equal dignity in the eyes of the law.”

“You have a precedent here, which affects our whole society,” Ms. Bonauto said, noting that there are about 823,000 married same–sex couples in the U.S. raising nearly 300,000 children. “This is something that people need to be able to count on.”

Justice Anthony M. Kennedy, who wrote the Obergefell opinion and is now retired, said in an October interview that “a powerful argument against” overruling the decision was the “tremendous amount of reliance” that same-sex couples and their families had placed on the decision.

Polls show that same-sex marriage also now has broad public support. More than three dozen House Republicans helped pass legislation in 2022 that required states and the federal government to recognize the validity of same-sex marriages.

“Nothing in the petition before the court justifies creating a patchwork of state laws excluding some families from marriage licenses in the states where they live,” Kevin Jennings, chief executive of Lambda Legal, an L.G.B.T.Q. legal advocacy organization, said in a statement ahead of Friday’s conference.

Still, the makeup of the bench has changed dramatically since the court’s 5-to-4 decision in 2015, shifting to the right with the arrival of three justices nominated by President Trump. Only two members of the Obergefell majority — Justices Sonia Sotomayor and Elena Kagan, both liberal — remain on the court.

But advocates point to recent statements and writings from justices as signals the court will likely decline to review Ms. Davis’s petition.

In her recent memoir, for instance, Justice Amy Coney Barrett described certain fundamental rights the court has recognized, including the “rights to marry, engage in sexual intimacy, use birth control and raise children.” She distinguished those from rights that she wrote are the subject of “complicated moral debate” and more open to interpretation by the court, including the right to commit suicide and obtain an abortion.

In an interview with a New York Times columnist after the book’s publication, she echoed Justice Kennedy’s comments about how people have relied on the Obergefell opinion.

“Those would be classic reliance interests in the terms of the law, in terms of legal doctrine,” she said. “Those are financial, those are medical.”

During a recent legal conference in Washington, Justice Samuel A. Alito Jr. criticized the decision — he had dissented when it was issued — but added, “I am not suggesting that the decision in that case should be overruled.”

Still, Justices Alito and Thomas both seemed to urge the court to reconsider the same-sex decision in 2020, when the case of the Kentucky county clerk was previously before the justices on a distinct legal question at a different point in the litigation.

The Supreme Court turned down Ms. Davis’s appeal then. While the two justices agreed with that denial, saying her case did not cleanly present questions warranting the court’s review, they used the opportunity to issue a statement saying that people with religious objections to same-sex marriage had been harmed by the decision in Obergefell.

After being found in contempt of court in 2015 for defying a federal order to issue licenses to same-sex couples, Ms. Davis spent five days in jail.

David Ermold and David Moore sued Ms. Davis after they were refused a license and prevailed at trial last year. Ms. Davis was ordered to pay the couple $360,000 in damages and lawyers’ fees. She is now appealing the judgment, saying she is protected from liability by the First Amendment and that because there is no constitutional right to same-sex marriage, the court should reverse its decision in Obergefell.

Mathew D. Staver, an attorney with Liberty Counsel, a Christian legal organization representing Ms. Davis, said she chose to stop issuing licenses to all couples until the state passed legislation to accommodate her religious objections. Ms. Davis did not want her signature on marriage certificates that would signal her personal endorsement of gay marriage, he said. She has asserted that the First Amendment protects her from being forced to issue licenses in violation of her religious beliefs.

“Like the abortion decision in Roe v. Wade, Obergefell was egregiously wrong from the start. This opinion has no basis in the Constitution. The high court should overturn Obergefell and correct this grievous error,” Mr. Staver wrote in a solicitation to donors on Thursday.

The couple’s lawyers have said in court filings that Ms. Davis belatedly raised her latest First Amendment claim and that it has not been fully aired in the lower courts. In addition, she declined in U.S. District Court to seek the overturning of Obergefell.

“Obergefell was correctly decided, and there is no need to revisit it,” the couple’s legal team wrote in a court filing. The lawyers are led by William Powell of the Institute for Constitutional Advocacy and Protection at Georgetown Law.

Ms. Davis provides “no reason why this court should revisit its conclusion that denying the fundamental right of marriage to same-sex couples ‘abridge[s] central precepts of equality,’” he wrote, quoting from Obergefell.

In March, the U.S. Court of Appeals for the 6th Circuit ruled against Ms. Davis, citing a recent Supreme Court decision that found public officials acting in their official capacity are not protected by the First Amendment. Public officials cannot “wield the authority of the state to violate the constitutional rights of citizens if the official believes she is ‘follow[ing] her conscience,’” wrote Judge Helene N. White, a nominee of President George W. Bush.

In a concurring opinion, Judge Chad Readler, a nominee of President Trump, quoted an earlier ruling that said Ms. Davis had taken “the law into her own hands.” Judge Readler said Ms. Davis had not just invoked a religious exemption for herself but enacted an official policy of denying marriage licenses that all employees of her county clerk’s office were required to follow.

“Under this unique set of facts, I agree that the First Amendment does not shield Davis from liability,” he wrote.

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