The Supreme Court could decide today whether to hear an appeal asking the justices to overturn their landmark 2015 decision that guaranteed the right to same-sex marriage. The court could announce whether it will take the case as early as Monday.
The challenge to the Obergefell v. Hodges decision comes from Kim Davis, the former county clerk from Kentucky who refused to issue same-sex marriage licenses, according to The Associated Press. Her petition will be reviewed during a closed-door conference during which justices set the docket for upcoming cases.
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The Davis appeal arrives three years after the Supreme Court’s conservative majority overturned Roe v. Wade, the landmark 1973 decision that legalized abortion across the nation. The 2022 ruling raised concerns about the potential impact on other precedents, and Newsweek notes that conservative legal advocates have also renewed efforts to limit LGBTQ protections.
What the documents and key players say
The appeal stems from Davis’s refusal to issue marriage licenses, for which she was ordered to pay about $360,000 in damages and attorney fees, the AP reported. Her appeal argues, first, that the First Amendment should shield her from liability and, second, that Obergefell should be overruled.
Her attorney, Matthew Staver, told Newsweek in October that the 2015 ruling “has no basis in the Constitution.” The 6th U.S. Circuit Court of Appeals rejected Davis’ First Amendment claims, ruling that the “free exercise clause” does not protect her from liability for state action.
Davis’ lawyers are citing past criticism of Obergefell from Justice Clarence Thomas. However, other conservative justices have signaled little interest in revisiting the case. Justice Samuel Alito, who also dissented from the 2015 ruling, recently said he was not advocating for the decision to be overturned.
Justice Amy Coney Barrett noted to The New York Times last month that “very concrete reliance interests” are at stake, a key factor the court considers when weighing precedent.
Legal analysts told Newsweek it is “unlikely” the Supreme Court will use this case to overturn the landmark ruling. Instead, they suggest the justices might accept the case to decide a narrower question.
“If the Supreme Court takes this case, it will not be to overturn Obergefell,” Marilyn Chinitz, a partner in the matrimonial and family law group at the law firm Blank Rome, told Newsweek, “but it could be reviewed in a narrow way, determining whether a state official can claim a religious exemption from performing official duties.”
Despite this, Jim Obergefell, the lead plaintiff in the 2015 case, told Newsweek he is “worried,” pointing to the court’s 2022 decision to overturn Roe v. Wade as proof it is “willing to turn its back on precedent.”
What’s next
If the justices decline to take the case, the lower court ruling against Davis will stand. If the court agrees to hear the appeal, the AP reports that arguments could be scheduled for the spring, with a decision possible by June.
