The U.S. Supreme Court is considering whether to hear a case brought by former Kentucky clerk Kim Davis, who is seeking to overturn the court’s decision in Obergefell v. Hodges, a landmark ruling that established the right to same-sex marriage across the nation.
Davis’ attorney, Matthew Staver, expressed optimism about the court taking the case, according to Newsweek.
But William Powell, the attorney who represented the couple that sued Davis, provided a statement to Newsweek that he is “confident the Supreme Court will likewise agree that Davis’s arguments do not merit further attention.”
The case, brought by Davis—a former Kentucky clerk who served six days in jail for refusing to issue marriage licenses to same-sex couples on religious grounds—could pose a significant challenge to federal protections for same-sex marriage nearly a decade after the Supreme Court legalized such unions nationwide.
Some justices, including Clarence Thomas, have signaled a willingness to revisit the issue in recent years, particularly as the court has shifted to the right. That conservative realignment on cultural matters was underscored by the 2022 decision overturning Roe v. Wade, which had guaranteed abortion rights for decades.
If the court were to strike down the nationwide right to same-sex marriage, the matter would likely revert to the states—many of which have yet to pass laws recognizing such unions.
In a newly filed petition to the Supreme Court, Staver argued against same-sex marriage on religious grounds.
“Obergefell was ‘egregiously wrong,’ ‘deeply damaging,’ ‘far outside the bound of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed,’ and set out ‘on a collision course with the Constitution from the day it was decided,’” he wrote.
Davis’ case “presents the ideal opportunity to revisit substantive due process that ‘lacks any basis in the Constitution,’” the petition says, per Newsweek.
“This flawed opinion has produced disastrous results leaving individuals like Davis ‘find[ing] it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws,’” it reads. “And, until the Court revisits its ‘creation of atextual constitutional rights,’ Obergefell will continue to have ruinous consequences for religious liberty.’”
The petition stated that if the court were to overturn Obergefell, the authority to determine marriage rights would revert to the states, while same-sex marriages performed since the ruling would remain legally recognized under a grandfather provision.
Staver told the outlet that he believes the court’s previous ruling on the issue is constitutionally unsound.
“It has no basis in the Constitution,” he said. “It’s what caused this issue with Kim Davis to be sent to prison for six days and now facing hundreds of thousands of dollars personally, is the Obergefell opinion originally, and I think that it’s time to reevaluate that and overturn it.”
Other legal experts are not confident that the high court would reverse its earlier decision.
“There’s a chance that a conservative majority could use the case to expand the rights of religious objectors to same-sex marriage,” Daniel Urman, law professor at Northeastern University, told Newsweek.
“But that’s not the same as overturning the right itself, and I don’t see a majority of the Court ready to do that. Culturally, same-sex marriage has become embedded in American life, and it is still popular in public opinion polls,” he added.
Paul Collins, a professor of legal studies and political science at the University of Massachusetts Amherst, told Newsweek that although Davis hopes to use the case as a means to overturn same-sex marriage, that is not necessarily the central issue before the court.
“Instead, it is about a jury verdict for inflicting emotional damages by violating a same-sex couple’s right to marry. This just isn’t the right vehicle for challenging a constitutional right to same-sex marriage,” he told Newsweek.