Overturning Obergefell?

Nearly 10 years after refusing to issue a marriage license to several same-sex couples, a former Kentucky clerk hopes to bring her case before the Supreme Court. Davis spent five days in jail in 2015 for her defiance of a court order and has been ordered to pay more than $360,000 in damages and attorney fees to two men who requested a marriage license. But according to Liberty Counsel, the firm representing Davis, the dispute isn’t just about money. Rather, it presents an opportunity to challenge the redefinition of marriage.

“This case underscores why the U.S. Supreme Court should overturn Obergefell v. Hodges,” Liberty Counsel founder Mat Staver said in a statement late last month.   

Since the fall of Roe v. Wade in 2022, some conservatives have explored the possibility of a reversal in the Supreme Court’s ruling on same-sex marriage. Roe and Obergefell stand on similar legal footing. Some state legislators have championed state resolutions to ask the Supreme Court to reverse its 2015 decision. But pinning those hopes on Davis’ case may be a long shot. Even if the justices agreed to hear a case like Davis’—and ruled in her favor—a change in court precedent may not be enough to topple constitutional protection of same-sex marriage, due to public support and a 2022 federal law.

Today, there are nearly 775,000 same-sex households in the United States, making up less than 1% of U.S. households. National recognition of same-sex marriage only recently developed. The Supreme Court struck down anti-sodomy laws in its 2003 Lawrence v. Texas decision, holding that the 14th Amendment protects a right to privacy that extends to sexual activity between same-sex partners. A year later, Massachusetts became the first state to issue licenses to same-sex couples. In 2013, the high court struck down the 1996 Defense of Marriage Act, which defined marriage as between one man and one woman. Before SCOTUS handed down its Obergefell decision in 2015, 38 states and the District of Columbia had legalized same-sex marriage. 

On May 1, Oklahoma state Sen. Dusty Deevers introduced a resolution calling for the Supreme Court to reverse Obergefell and recognize marriage as a union between one man and one woman, “or to return full authority over marriage policy to the several states.” Congressmen in five other states have filed nearly identical resolutions.

“Make gay marriage illegal again,” Michigan state Rep. Josh Schriver wrote on X, the platform formerly known as Twitter, in December. “This is not remotely controversial, nor extreme.”

Schriver stood by his announcement with a Feb. 25 resolution urging the Supreme Court to overturn its 2015 ruling. “This decision has defaced the definition of marriage, undermined our God-given rights, increased persecution of Christians, and confused the American family structure,” Schriver said at a news conference. Congressional leaders in Idaho and South Dakota announced nearly identical declarations this year. In March, North Dakota senators rejected a resolution to condemn Obergefell and Montana’s Senate Judiciary committee tabled a similar resolution.

MassResistance, a Massachusetts-based conservative advocacy organization committed to supporting traditional understandings of marriage and sexuality, drafted the resolutions. “By instituting or initiating this resolution effort, we are forcing the conversation back into the public square,” MassResistance field director Arthur Schaper told WORLD. 

Some left-leaning states are also preparing for possible changes at the federal level. Last year, voters in California and Hawaii passed ballot measures to repeal any state constitutional barriers to same-sex marriage. On April 7, Colorado Gov. Jared Polis officially rolled back a defunct state state law defining marriage as between one man and one woman. 

LGBTQ advocacy groups have urged same-sex married couples to shore up their legal rights. In March, more than 100 people met with notaries, witnesses, and lawyers during a free medical power of attorney session at St. Paul United Church of Christ in St. Louis. Marler Law Partners, a local firm, hosted the event and marketed it to people who identify as LGBTQ. 

“By proactively securing a medical power of attorney, members of the LGBTQ+ community can take an important step toward safeguarding their rights,” the firm announced on social media ahead of the event.  

Schaper said that the number of states introducing resolutions upholding traditional marriage indicates that the effort to push back on Obergefell is gaining traction. 

But according to University of Missouri law professor Carl Esbeck, while resolutions serve as a “statement of majority opinion,” overturning the court decision would require a live Supreme Court case. 

Daniel Schmid, an attorney with Liberty Counsel, believes that Kim Davis’ appeal could be that case. 

Davis belongs to a growing contingent of people who claim a constitutional right to same-sex marriage has infringed on their First Amendment freedoms. From bakers to florists to website designers, “almost every industry that deals with weddings had religious individuals who didn’t want to participate or lend their religious expression to the ceremony, and every single one of them that I’m aware of was sued,” Schmid told WORLD. 

In 2020, the Supreme Court declined to hear Davis’ appeal. Justice Clarence Thomas concurred with the high court’s denial but signaled his disapproval of how Obergefell prioritizes a “novel constitutional right” above religious freedom. “The Court has created a problem that only it can fix,” he wrote. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”

In addition to threatening religious freedom, Thomas suggested that the court’s 2015 decision relies on substantive due process, a legal doctrine that also undergirded Roe v. Wade.

Substantive due process holds that implied fundamental rights should be protected from government interference. The framework has been used to infer a right to privacy, enshrining access to things like contraception, abortion, same-sex marriage, and even a parent’s right to educate their children.

Obergefell, Thomas wrote, belonged to a group of “constitutionally unmoored policy judgments” inspired by the legal doctrine. “Substantive due process conflicts with that textual command and has harmed our country in many ways,” he wrote. “Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”

Schmid called Davis’ case “a direct assault on Obergefell and a broader attack, if you will, on substantive due process.” According to a statement from Liberty Counsel, the firm believes it has another chance at a Supreme Court hearing because the case might fit the criteria for “first impression,” meaning that the dispute presents a unique question courts have yet to answer. 

Some legal experts believe that the Davis case isn’t likely to get a Supreme Court hearing, partly due to a lack of supporting friend-of-the-court submissions. Also, out of the 4,000 appeal petitions the Supreme Court receives yearly, the court only grants about 70, said University of Missouri’s Esbeck. 

And even if the court did grant Davis a hearing, it would take more than a challenge to court precedent to send same-sex marriage back to the states. That’s because the Biden administration secured federal recognition of same-sex marriages in 2022 with the Respect for Marriage Act. 

“So somebody wanting to go back to pre-Obergefell would have to not only get the court to reverse itself on Obergefell, but they would have to get Congress to repeal the Respect for Marriage Act,” said Esbeck. “So, sort of a double heavy lift and politically improbable.”

Despite the odds, Schmid of Liberty Counsel remains optimistic. “It took 50 years to overturn Roe,” he said. “I don’t think it’ll take 50 years to overturn Obergefell, but who knows?”

The rise in transgender ideology has likely fueled calls to overturn the ruling. 

Jennifer Roback Morse, founder of the pro-family nonprofit Ruth Institute, said that defining same-sex marriage as a constitutional privilege paved the way for the transgender movement by “degendering” marriage. “Hello, having children is the most gendered thing that we do,” Morse said. “If you’re going to say that doesn’t matter, then it doesn’t matter on the sporting field, it doesn’t matter in the bathroom, it doesn’t matter anywhere.”

But Morse doesn’t anticipate the outcry against same-sex marriage at the state level will reach a fever pitch anytime soon. A Gallup poll found that in 2024, only 29% of Americans believed same-sex marriages should not be legally recognized on par with marriage between one man and one woman, down from 37% in 2015.

For a broad enough opposition to same-sex marriage to develop, Morse thinks society needs to understand the purpose of the institution of marriage. 

Mainstream culture has reduced sex to a recreational activity. Even heterosexual marriage has become, in Morse’s words, a “government registry of friendship,” leaving more and more young people with broken homes and little incentive to safeguard a definition of marriage: “When you say gay marriage is going to deprive children of one of their parents, they’re like, ‘So what?’ ... Because mom’s on her third husband, right?”