Supreme Court To Consider Whether To Hear Challenge to Its Same-Sex Marriage Decision
At least four justices will need to agree to revisit the landmark gay rights decision for the case to be reviewed.
Ten years after its ruling that same-sex marriages are legal, the Supreme Court is scheduled to consider next month whether to hear a case that seeks to overturn the 2015 Obergefell v. Hodges decision.
The case involves Kim Davis, the former count clerk in Kentucky who refused to issue a marriage license to a gay couple David Moore and David Ermold after the Obergefell decision. Ms. Davis was later jailed after continuing to refuse to do so after the governor directed all clerks to grant licenses to same-sex couples. Ms. Davis says she refused on religious grounds.
Messrs. Moore and Ermold sued Ms.Davis alleging that she had violated their constitutional right to marry and a jury awarded them damages of $50,000 apiece in 2023.
The U.S. Court of Appeals for the 6th Circuit rejected Ms. Davis’s appeal saying she was acting on behalf of the government when she denied the marriage license and not a private citizen.
Ms. Davis petitioned the Supreme Court in July to review the Sixth Circuit’s decision and also overrule their decision in Obergefell, claiming it had no basis in the Constitution.
The Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection and the DelCotto Law Group, who are representing Messrs. Moore and Ermold, filed a response to the suit this month stating that, “This is a ‘relatively easy’ case that does not merit this Court’s review.”
In a court filing this week, lawyers for Ms. Davis cited Justice Clarence Thomas several times as part of the rationale to hear the case. Justice Thomas has questioned same-sex marriage rights in the past but its unclear if there are enough justices willing to join him in picking up the case.
The private conferences involving the justices on Friday, November 7 would be the first of at least two consecutive conferences justices generally require holding on a case before granting review.
It would take four votes in favor of granting an appeal for the court to review the case. SCOTUS blog, which covers the Supreme Court, states that even if there are four justices who might want to review the case, they are unlikely to grant review unless they are confident that there is a fifth justice willing to overturn Obergefell.
