Same-Sex Marriage Precedent Faces New Supreme Court Test – LAmag

The Supreme Court is weighing whether to hear a case that could challenge Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage nationwide

As people gathered outside the Supreme Court to protest today, inside the Justices reviewed a case that could threaten the 2015 Obergefell v Hodges decision that legalized same sex marriage.  Taking place in a closed-door conference, which takes place yearly at this time, the Supreme Court is determining which appeals the Court will hear in the coming months. The decisions from today could be known as soon as Monday and could be held off as long as a couple of weeks. 

The case in question is from 2015, regarding a former county clerk, Kim Davis, in Kentucky, who refused to issue marriage licenses to same sex couples. As the sole authority over issuing marriage licenses on behalf of the government in Rowan County, she was thrown in court for several days for violating a court order. Davis made multiple requests of the court, including protection from liability and a request to overturn Obergefell v. Hodges. Davis cited her religious beliefs as justifiable reasons to withhold the marriage licenses. She was sued by David Ermold and David Moore for this decision, and the jury awarded the couple $100,000 in emotional damages as well as $260,000 in legal fees. Davis’s request specifically asks the court to overturn the lower court order for damages, as she believes the First Amendment’s religious protections should shield her from legal liability.

Her petition stated that “anything less would leave the First Amendment’s promises hollow to those who agree to public service and are sued for exercising their religious beliefs during that time”. The 6th US Circuit Court of Appeals rejected this argument, explaining as Davis was operating within her capacity as a government official, the judges ruled she was not entitled to First Amendment protections. The judges went further to say, “When an official’s discharge of her duties according to her conscience violates the constitutional rights of citizens, the Constitution must win out”. It is also important to note that three years ago, Congress passed a federal law protecting same-sex and interracial marriage with bipartisan support. 

In regard to Obergefell v. Hodges, it is possible that the court could take up the religion question without considering overturning the case despite Davis’s request. However, the Supreme Court has undergone massive change since 2015, with a now 6-3 conservative majority leaving the case vulnerable. Justice Clarence Thomas has made his position clear as he urged his colleagues to “reconsider” Obergefell v. Hodges in his opinion on the case that overturned Roe v. Wade due to the similarities in reasoning between the two cases.

Justices Thomas, John Roberts and Samuel Alito were dissenters in the 2015 case and remain on the Supreme Court today. Despite Justice Alito’s belief that Obergefell is inconsistent with originalist legal philosophy, he stated, “I am not suggesting that the decision in this case should be overruled… Obergefell is a precedent of the court that is entitled to the respect afforded by the doctrine of stare decisis”. Additionally, Justices Barrett and Kavanaugh have publicly signaled that they don’t believe same-sex marriage rights should be rolled back. 

The Supreme Court considers whether Americans have become dependent on a decision when they weigh the possibility of overturning a precedent, and unlike abortion, this is true for same-sex marriage, as this includes child custody and financial planning, as about 600,000 same-sex couples were married after 2015, and around 300,000 children are being raised in these families. A sentiment echoed in Ermold and Moore’s brief “Overruling Obergefell could call into question the constitutional status of existing same-sex marriages and disrupt the lives of those who aspire to, plan their affairs around and benefit from same-sex marriage”. However, it can be countered that Obergefell is “not grounded in the nation’s history or traditions”, a precedent put into place by the Dobb’s case which overruled Roe v Wade. 

Although many are hopeful that the Court will not take up Davis’s request to overturn Obergefell v Hodges, it may entice other officials to break laws they do not support in an effort to take the case to the Supreme Court. Already, at least 9 states have introduced legislation aimed at blocking new marriage licenses for LGBTQ people or have passed resolutions urging the Supreme Court to reverse Obergefell at the earliest opportunity. Just last month, Texas put in place rules allowing judges statewide to refuse to perform wedding ceremonies for same sex couples, if it would violate their religious beliefs. 

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With the Supreme Court receiving 5000-7000 requests to consider cases a term, but only hearing oral arguments from 80 and issuing orders to just another 100, it is entirely possible that this case will be denied. Justices typically consider cases at each conference and tend to consider cases at multiple conferences before ever reaching a decision, so it is undetermined when we will hear about their choice.