Justices Take Up Incendiary Issue: Time to Revisit Landmark Gay Marriage Ruling?

The Supreme Court is scheduled to hold a private conference Friday to consider whether it will hear a challenge to its landmark 2015 ruling on same-sex marriage.

Jim Obergefell, the lead plaintiff in Obergefell v. Hodges — the 5-4 decision that guaranteed nationwide marriage rights for same-sex couples — told Newsweek on Thursday he is "worried" and warned that the precedent his case established now faces a "scary path."

The challenge was brought by Kim Davis, a former clerk in Rowan County, Kentucky, who made national headlines after the Obergefell decision when she refused, on religious grounds, to issue a marriage license to a gay couple, David Moore and David Ermold.

Matthew Staver, an attorney for Davis, told Newsweek last month that Obergefell "has no basis in the Constitution," saying the decision "could be overruled without affecting any other cases."

As a general practice, the Supreme Court does not grant review without considering a case in at least two consecutive conferences, according to SCOTUSblog. This will be the first conference in which Davis' challenge will be discussed.

If the justices deny review, that announcement could come as soon as Monday.

"Absolutely, people should be concerned. I'm concerned," Obergefell told the Attitude, an LGBTQ media outlet. "Yesterday I officiated a wedding for a cousin who asked whether they should get married now instead of waiting. My answer was yes."

Although many legal analysts say Obergefell remains controlling law — binding precedent that governs future cases — overturning it would be difficult.

Still, the possibility cannot be dismissed entirely given the political climate and the court's conservative makeup.

"This court, to me, is far from normal, and that's what concerns me," Obergefell told Newsweek. "We now have a Supreme Court that has shown it is willing to turn its back on precedent, which had always been a bedrock principle for the Supreme Court."

Obergefell also warned that political forces opposed to LGBTQ rights are willing to manipulate electoral systems to maintain power.

"We have a political party that has turned its back on democracy," he told the Attitude, referring to Republicans. "They're doing everything they can solely to remain in power — to punish and to be vindictive."

The partisan gap on the issue of same-sex marriage is wider today than it has been in 29 years, according to a May Gallup Poll. But 68% of Americans said they support same-sex marriage — a rate that has remained roughly steady for the past five years.

The 2022 Respect for Marriage Act, signed into law by President Joe Biden, ensures that same-sex marriages performed in one state are recognized by all other states and by the federal government.

However, the law does not require every state to issue marriage licenses if Obergefell were overturned. States with bans still on the books could again deny licenses to same-sex couples.

"Ohio [where he lives] still has a Defense of Marriage Act on the books," Obergefell told the Attitude. "If Obergefell is overturned, Ohio could immediately say no more marriage licenses for queer couples."

Moore and Ermold successfully sued Davis in federal court, alleging she violated their constitutional rights by refusing to issue them a marriage license. A jury awarded each $50,000 in damages.

The Sixth Circuit Court of Appeals upheld that judgment earlier this year, ruling that although Davis is protected by the First Amendment as a private citizen, she was not shielded when acting in her official capacity as county clerk.

In July, Davis asked the Supreme Court to review the Sixth Circuit's decision. She also urged the justices to overrule Obergefell, arguing that a right to same-sex marriage "had no basis in the Constitution" and left her "with a choice between her religious beliefs and her job."

Some legal analysts believe the Supreme Court might agree to take the case but could rule more narrowly — deciding whether individuals should receive religious exemptions from issuing marriage licenses to same-sex couples, Newsweek reported.

That would align with a Texas Supreme Court decision from Oct. 31 granting judges in that state exemptions from performing same-sex marriages based on "sincerely held religious beliefs."