Legal Docket: Redefining marriage

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NICK EICHER, HOST: It’s The World and Everything in It for this 7th day of July, 2025. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket, summertime edition!

The Supreme Court takes a summer recess, ours is a little different.

When the Supremes are on break, we turn attention to disputes brewing in the lower courts. A tiny fraction of those can wind up at the high court eventually, an even smaller slice of the caseload can cause the court to reconsider prior rulings.

EICHER: It took 50 years to course-correct on the abortion decision Roe versus Wade, and the cultural, political, and legal groundswell that led up to it had its roots in Christian churches.

AUDIO: The question before us is on the adoption of Resolution Number 5. Are you ready for the question?

Ten years ago this summer was the Obergefell v. Hodges case the Supreme Court used to rewrite marriage laws.

On that 10th anniversary, America’s largest protestant denomination openly called upon the court to have another look.

AUDIO: Microphone 1A, does your amendment pertain to Resolution Number 5?

Yes, it does.

All right, go ahead.

My name is Dean Scoular

REICHARD: The Southern Baptist Convention resolution said:

“Legal rulings like [Obergefell] and policies that deny the biological reality of male and female … are legal fictions, [they] undermine the truth of God’s design, [they] lead to social confusion and injustice.”

It calls for “the overturning of laws and court rulings, including [Obergefell], that defy God’s design for marriage and family.”

AUDIO: The question now is on adoption for Resolution Number Five as amended. All in favor, please raise your ballots. You may lower them. Any opposed? Raise your ballots. The affirmative has it. Resolution passes.

EICHER: It’s one sign that efforts to overturn the 20-15 ruling are gaining a foothold. At least five states have introduced resolutions urging the court to reverse Obergefell: Idaho, Michigan, Montana, North Dakota, and South Dakota. They haven’t gotten far, though, and even if the resolutions progress, they have no legal force.

REICHARD: But the Supreme Court is a much different place than it was a decade ago, when Justice Anthony Kennedy issued the 5-4 opinion.

KENNEDY: The Court now holds that same-sex couples may exercise the fundamental right to marry in all states; no longer may this liberty be denied to them.

EICHER: Kennedy’s off the court. Brett Kavanaugh took his place. Another justice who made up the Obergefell majority was the late Ruth Bader Ginsberg. Replacing her, Justice Amy Coney Barrett.

REICHARD: Among the four who opposed Obergefell, three remain, Justices Clarence Thomas and Samuel Alito, and the Chief Justice, John Roberts, who read the dissenting opinion.

ROBERTS: From the dawn of human history until a few years ago, for every people known to have populated this planet, marriage was defined as the union of a man and a woman... But today, five lawyers have ordered every State to change its definition of marriage... Just who do we think we are?

Justice Kennedy in the majority opinion took pains to suggest there are good people on both sides of the debatel

KENNEDY: Of course, those who oppose same-sex marriage, whether on religious or secular grounds, they continue to advocate that belief with the utmost conviction. … Many who deem same-sex marriage to be wrong hold that view based on decent and honorable premises. Neither they, nor their beliefs, are disparaged here.

EICHER: But the disparaging would take mere days, and would show up in a county clerk’s office in Rowan County, Kentucky ,where same-sex couples came into conflict with a clerk who refused to grant marriage licenses.

CLERK'S OFFICE: No, we’re not leaving until we have a license. Do your job. Everyone in this office should be ashamed of themselves. Is this what you want to be remembered for? There are children that will look at you and realize that you’re a bigot!

That county clerk is Kim Davis, she was jailed six days for refusing to go along. After her release, she pleaded for some kind of accommodation that would respect both her conscience and the rule of law.

DAVIS: So I’m here before you this morning with a seemingly impossible choice that I do not wish on any of my fellow Americans: my conscience, or my freedom. My conscience, or my ability to serve the people that I love.

What Davis got instead was a fine and a lawsuit against her personally.

REICHARD: The same sex couples did receive marriage licenses from other clerks who didn’t have religious convictions about the matter.

Later on, the political landscape changed and a new governor as well as the Kentucky legislature gave Davis a religious accommodation. Her office implemented a system in which licenses were issued without her name or title on them.

But same sex couples came after her anyway.

I spoke with her attorney, Mat Staver of Liberty Counsel

STAVER: Their feelings were hurt, and they claimed that they were entitled to what they call emotional damages …against Kim Davis personally, that Kim should pay them personally, hundreds of 1000s of dollars. When you tack on the attorney's fees, it goes up to $360,000 plus dollars ….

EICHER: Davis appealed. The Sixth Circuit Court of Appeals in March this year upheld the damages award. It said that as county clerk, her job was a “quintessential state action” that required her to issue same- sex marriage licenses, no matter what. Today, her lawyer Staver says the case could become a vehicle to challenge Obergefell.

STAVER: She should, at a minimum, have the First Amendment Free Exercise Clause as a defense. But also what caused all this mess was the five -four opinion that has no basis in the Constitution, therefore it should be overturned.

REICHARD: Staver traces many of the culture battles of the past ten years to the fallout from Obergefell:

STAVER: But beyond that, what does this policy say? That gender doesn't matter in a gender based relationship? Well, let's take it outside of marriage. What about boys and girls sports? Boys going into women's private spaces? If gender doesn't matter in a gender based relationship, then it extends out to these other areas as well. So the Kim Davis case is symptomatic of a bigger problem. It affects all of us. You may not be involved in the marriage issue. You might even say, well, it doesn't affect me, no, it does affect you. It affects everyone. It affects the cake baker. It affects the website maker. It affects the florist….It affects you in the workplace. It affects the LGBTQ indoctrination in the public schools. All of this is really rooted in the issue and the problems in the Kim Davis case 10 years ago, in 2015.

Staver says that precedent must not stand. The Supreme Court in 2020 declined to hear an earlier appeal from Davis. So we wait to see whether the court will accept this appeal once it’s filed.

EICHER: Now, another matter out of Kentucky: Back in 2020, Governor Andy Beshear issued orders banning mass gatherings to limit the spread of Covid. The ban was unevenly applied; for example, big box stores could stay open. Churches could not.

REICHARD: Maryville Baptist Church held an in-person Easter service where people could show up, stay in their cars, and hear the service on a big screen. Others entered the church.

Kentucky State Police put quarantine notices on all the windshields.

STAVER: They ticketed every single person that was in their car with the windows rolled up listening to a loud speaker. Now they could have gone to the big box center or an abortion clinic and listened on the radio or to a loudspeaker would be no problem, but doing that in a church parking lot was a problem for that governor, and so as a result of this citation, these people had to stay in quarantine for a month. They could not leave the county without permission. They could not take public transportation, and several of them, when they returned to work on Monday and Tuesday of that following Sunday, they were terminated by their employers when they realized that these individuals had attended Maryville Baptist Church. So some of them lost their livelihood over this issue.

The church and its pastor sued Governor Beshear, alleging violation of First Amendment rights. Beshear argued it was all about public health.

Liberty Counsel also represents the plaintiffs in this case:

STAVER: We got the first court of appeals injunction in the entire country blocking these church lockdowns. And we got several injunctions at the court of appeals, all of them unanimous, three to zero decisions. Interestingly, there were some other people that were not attendees of this church, that wanted to come to the church because they knew that it was open, and so they were there on the same Easter Sunday. And so using our pleadings in the case that we filed and for which we got an injunction, they also filed a separate lawsuit, and they too, because of our injunction, got an injunction.

EICHER: The problem is, each case with similar facts under similar laws drew a different judge, with different results.

STAVER: But in our case, a separate judge ruled, even though it's identical, and we're the ones who led the case, that we were not prevailing parties. It went to the Sixth Circuit Court of Appeals, and the Sixth Circuit Court of Appeals said, look at the decision we just issued in the identical same situation, go back and reconsider it. Went back down to the lower court judge that originally ruled against us and ruled against us again.

So, no attorneys fees in that case—those are awarded only when you are deemed a “prevailing party” in these kinds of cases.

Complicating matters is a recent Supreme Court ruling against making someone a “prevailing party” when they have only a preliminary injunction and still received the remedy sought.

The consequence of that is that civil rights lawyers may not want to take cases… when a deep-pocket state can just wait it out.

STAVER: So that's why this needs to be addressed by Congress, so that this particular decision, which really, I think hurts civil rights litigations and constitutional rights issues needs to be reversed and changed in accordance the way it used to be for decades.

REICHARD: That’s a common refrain these days: Pushing Congress to do its job. Other Supreme Court decisions do seem to be trying to get the three branches into their proper lanes.

And that’s this week’s Legal Docket!

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