Kim Davis, the former county clerk from Kentucky, is making a bold move by asking the Supreme Court to overturn its landmark 2015 decision in Obergefell v. Hodges. This ruling was key in recognizing same-sex marriage all across the United States. Davis, who gained notoriety for denying a marriage license to a same-sex couple following the Obergefell decision, is leaning on opinions from Justice Clarence Thomas as she pushes her case forward.
In her latest filing, which is part of her formal reply brief to the justices, Davis highlighted Thomas’s views multiple times. This could be her last opportunity before the justices decide whether to take up her petition. To allow for review, at least four justices need to be on board.
It’s no surprise that Thomas’s opinions factor into her argument, given that he has previously questioned the legitimacy of same-sex marriage. Notably, Davis quoted his 2020 statement, made alongside Justice Samuel Alito, where Thomas criticized the court’s undermining of religious liberties associated with Obergefell: “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix.”
Interestingly, Davis also references Justice Amy Coney Barrett’s recent book, which she has been promoting. Davis quotes Barrett’s assertion that “stare decisis is only a presumption; the Court can and does fix mistakes,” tying this perspective back to her challenge against Obergefell.
Even though Barrett was not part of the Supreme Court when Obergefell was decided in a narrow 5-4 vote—with Justice Anthony Kennedy writing the majority opinion—her comments seem significant to Davis’s argument. The barring justices at that time were, alongside Kennedy, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—each replaced by Justices Brett Kavanaugh, Neil Gorsuch, and Ketanji Brown Jackson. Conversely, Justices Alito, Thomas, Roberts, and Antonin Scalia dissented.
Davis’s request aims to challenge a lower court ruling from the Sixth Circuit Court of Appeals, which affirmed her defeat in a civil case filed by David Moore and David Ermold—the couple she denied a marriage license. Opposing Davis’s petition, Moore and Ermold assert that Obergefell was rightly decided and doesn’t warrant reevaluation.
With the briefs now finished and Davis’s response submitted, the justices are scheduled to weigh her petition on November 7. A decision could come quickly afterward, but the justices aren’t bound by a deadline to make a ruling.
While anything could happen in court, initial indications suggest that a majority may not be inclined to revisit the established precedents. Instead, it will be worth paying attention to whether there will be separate statements or dissenting opinions linked to the rejection of this petition, as this could signal the views of the current justices.
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This news was initially reported on MSNBC.com.
