Supreme Court considers whether to hear religious liberty case that could overturn same-sex marriage

The U.S. Supreme Court will hold a private conference on Friday to discuss whether to hear a case that could overturn the national legalization of same-sex marriage in Obergefell v. Hodges (2015).

The meeting would be the first of typically two conferences held by the court before granting review of a case, according to SCOTUS Blog.

The petition before the court is brought by a former Kentucky county clerk, Kim Davis, who spent six days in jail two months after Obergefell for denying licenses to three same-sex couples.  

Davis paused all issuing of licenses from June 29 to early September 2015 to not “discriminate against anyone” while she sought a religious accommodation, according to Liberty Counsel, which is representing her. 

“The courts used Obergefell to deny Davis a religious accommodation and took away her liberty with six days in jail, which unconstitutionally forced her to choose between her religious beliefs and her livelihood,” Liberty Counsel writes.  

While Davis was imprisoned, a deputy clerk issued the licenses, but only one of the three plaintiffs who sued Davis dropped the suit, Liberty Counsel reports. 

“This entire course of litigation has never been about getting a marriage license,” Davis’ petition reads. “Respondents continued this litigation long after obtaining their license in September 2015 to punish Davis for not placing her name on their license.” 

In December 2015, then Kentucky Gov. Matt Bevin granted Davis religious exemption, which falls under First Amendment protections, Liberty Counsel argues. In April 2016, the Kentucky Legislature “codified the religious exemption by removing the names of all clerks” from marriage licenses, according to Liberty Counsel.  

In 2017, however, the same two plaintiffs sued Davis for “emotional distress” from “hurt feelings” because of her refusal to sign their license. The proceedings brought $360,000 levied against Davis: $100,000 for “emotional distress” and $260,000 for “attorney’s fees and costs,” Liberty Counsel records.  

“Obergefell v. Hodges cannot override the First Amendment to send someone to jail for their religious beliefs on marriage, and it certainly does not establish a right to obtain a marriage license with a specific clerk’s name on it,” Davis’ attorney Matthew Staver said in a statement. 

When Davis appealed, the 6th District Court of Appeals dismissed her case, claiming the First Amendment does not protect state action (such as marriage licenses), only individual action, according to Newsweek.  

“But it cannot be that government officials are stripped of all First Amendment defenses upon election,” Davis’ petition argues. … “Thus, the protection afforded to religious exercise is not surrendered upon government employment.” 

In addition to First Amendment protections, Staver is arguing for Court to reconsider Obergefell because of its unconstitutionality, demonstrated in Davis’ case. 

“Kim Davis’ case underscores why the U.S. Supreme Court should overturn the wrongly decided Obergefell opinion because it threatens the religious liberty of Americans who believe that marriage is a sacred union between one man and one woman,” Staver said in a statement. “Like the abortion decision in Roe v. Wade, Obergefell was egregiously wrong from the start. This opinion has no basis in the Constitution.” 

Staver cites Justice Clarence Thomas’ own caution from 2015 when he warned that Obergefell could have “potentially ruinous consequences for religious liberty.

In addition to Obergefell, Congress passed the Respect for Marriage Act in 2022, which protected same-sex marriage under law, Newsweek reports.  

“Same-sex marriage is not deeply rooted in the Nation’s history,” the petition states.