Former Kentucky clerk petitions US Supreme Court to overturn same-sex marriage ruling

A petition asking the U.S. Supreme Court to reverse its 2015 decision striking down state bans on same-sex marriage is not keeping Lambda Legal Defense and Education Fund senior counsel Jenny Pizer awake at night. This year marks the 10th anniversary of the high court’s landmark Obergefell v. Hodges ruling that legalized same-sex marriage nationwide.

Pizer has two reasons: One, because Congress passed and then-President Joe Biden signed the Respect for Marriage Act in 2022, prohibiting any state from denying recognition of a same-sex or interracial marriage licensed in another state. And two, because reversing Obergefell v. Hodges has not been a top priority for President Donald Trump or many conservatives who are driving his second term agenda.

But former Kentucky county clerk and same-sex marriage foe Kim Davis apparently feels differently. She has filed a petition asking the Supreme Court to overturn Obergefell v. Hodges. Her attorney is Mathew Staver of the anti-LGBTQ Liberty Counsel.

Davis’s petition, Davis v. Ermold , was docketed by the court August 1. David Ermold and David Moore are the gay couple who were refused a marriage license by Davis following the Obergefell decision in 2015. Davis said at the time she could not issue the license due to her religious beliefs. Davis was jailed for six days for refusing to issue same-sex marriage licenses. A federal jury in 2023 awarded Ermold and Moore $100,000 in damages for Davis’ refusal to issue the license.

There are two reasons to be concerned the court might take up the appeal this session. Justices Clarence Thomas and Samuel Alito have stated they would like to overturn Obergefell. They would need to convince only two more justices to have the four votes necessary to take up the appeal.

But, said Pizer, a 30-year veteran of Lambda Legal’s fight for marriage equality, the court’s other four conservative justices are mindful that they would need a fifth vote to overturn Obergefell. And, just five years ago, Thomas and Alito agreed with the rest of the court’s rejection of the petition for review of the case that Davis previously sought, which was similar to the one she filed again this session. They said the case, Davis v. Ermold, did “not cleanly present” issues of religious freedom they saw as important to overturn marriage equality for same-sex couples.

In her latest petition, Davis poses three questions: Whether the First Amendment right to free exercise of religion should protect Davis from paying the damages; whether the county should pay the damages for Davis’ act as county clerk, rather than Davis pay as an individual; and, whether “Obergefell v. Hodges and the legal fiction of substantive due process, should be overturned.”

A three-judge panel of the 6th U.S. Circuit Court of Appeals (which included two appointees of former President Bill Clinton and one appointee by Trump) ruled that Davis had made “the same” arguments before, seeking to have the county pay the damages for the former county official. It ruled that Davis’ action in refusing the couple a marriage license was the act of a government official and, thus, could not be protected under the free exercise clause.

“It’s hard to say for sure what will happen,” said Pizer, “but for now, I’m not staying up all night with anxiety that our marriages will be dissolved and we’ll not be able to marry in the future.”

 
According to the Williams Institute , an LGBTQ think tank at UCLA School of Law, there are 823,000 married same-sex couples in the U.S. today. Of those, 591,000 married following the 2015 Obergefell decision.

Closer to home, gay San Francisco District 6 Supervisor Matt Dorsey told the Bay Area Reporter that his efforts to undo the city’s equal benefits ordinance would take into account the possibility that same-sex marriage might be at risk. The EBO, as it is known, requires companies contracting with the city to provide unmarried same-sex partners the same benefits as their married heterosexual colleagues. Dorsey has maintained the ordinance is no longer needed because same-sex couples can now wed. He has acknowledged, though, that could be in jeopardy under Trump and the 6-3 conservative supermajority on the Supreme Court.

Dorsey, as he wrote in a guest opinion August 7 in the B.A.R., now plans to pursue a legislative approach that would halt enforcement of the EBO, thereby restoring competition to the city’s competitive bidding, with a hair-trigger provision to enforce the EBO immediately for new contracts if LGBTQ marriage rights were ever overturned.

He reiterated that in a phone call Tuesday when he was asked for comment on the Davis petition.

“It’s very important that Democrats not be cowed into submission to make America better,” Dorsey said, echoing themes he’s touched on regarding the city needing to root out waste, fraud, and abuse, including in its contracting processes.

Dorsey believes that the inclusion of the EBO mandates has prevented bid competition for city services, which is costing city taxpayers more money at a time the city has made cuts to balance its budget.

“I’d rather do more to squeeze more out of contractors than lay off employees,” Dorsey added.

Meanwhile, the Supreme Court docket has placed Davis v. Ermold on the agenda for discussion at the court’s September 29 private conference. An attorney for Ermold and Moore has asked the court for an extension until October 8 to file a response to Davis’ petition. As of deadline, the court had not responded to that request.

Even the remote possibility that the justices will take up her petition this go around has sparked concern in LGBTQ circles. But it also has presented a fundraising opportunity, such as the appeal for donations sent out Tuesday by the LGBTQ+ Victory Fund to support its efforts to elect more out candidates to elected office across the U.S.

“Kim Davis is like a bad penny. But as we've seen, certain Supreme Court justices are very open to hearing her terrible views,” wrote Orie Givens, the political group’s vice president of communications, in an email to its donors. “Davis even says in her case that ‘Obergefell was wrong when it was decided and it is wrong today because it was based entirely on the ‘legal fiction’ of substantive due process, which lacks any basis in the Constitution.’ In his argument dismantling Roe, Clarence Thomas used this exact legal argument to go after the pro-LGBTQ+ cases. It's clear these bigots won't stop until we make them.”

LPAC, which works to elect out women and nonbinary candidates to public office, also raised concerns about Davis’ petition in its own emailed fundraising pitch.

“And she’s not alone. This year alone, nine states have pushed to block marriage licenses for LGBTQ+ people or urged the court to reverse marriage equality entirely,” noted LPAC. “This is a coordinated attack, and it’s moving fast. If they win, our right to marry could disappear overnight.”