Same-Sex Marriage Challenge Seen as Long Shot at Supreme Court

Ten years after the US Supreme Court’s landmark marriage equality ruling, a Christian legal organization is preparing to directly challenge the decision at a time when LGBTQ rights are facing new headwinds.

In recent weeks, the Southern Baptist Convention passed a resolution calling for the overturning of Obergefell v. Hodges, which was issued June 26, 2015, and the Supreme Court’s conservative majority upheld a Tennessee law that bans gender affirming care for transgender minors.

But even conservative allies doubt four justices would agree to consider what appears to be the first and only case to directly threaten gay marriage.

“There needs to be a sufficient amount of time, as well as a sufficient amount of public advocacy in support of a change, before you see a major precedent like that overruled,” said John Bursch, senior counsel and vice president of appellate advocacy at Alliance Defending Freedom.

Bursch, who argued on behalf of Michigan for the court to uphold state bans on same-sex marriage in Obergefell, noted that Roe v. Wade was on the books for 49 years before the court overturned the legal right to abortion in 2022.

Liberty Counsel still plans to try.

The group is representing Kim Davis, a Kentucky county clerk sued by a same-sex couple after she refused to issue them a marriage license 10 days after the court handed down its Obergefell decision.

Davis is appealing the US Court of Appeals for the Sixth Circuit’s refusal to shield her from a jury’s decision holding her liable for $100,000 in damages for the emotional distress the court said she caused the couple in violating their constitutional right to marry.

Repeat Rejection?

In the filing due July 27, Liberty Counsel plans to ask the justices whether the First Amendment shields Davis from liability. The Sixth Circuit said it can’t because Davis was wielding her authority as a public official, which is a state action not protected by the First Amendment.

Mat Staver, Liberty Counsel’s founder and chairman, said the group also plans to argue Obergefell should be overruled.

It’s possible the court could only decide to hear Davis’ First Amendment claim if they take her case at all, but Staver said the court also could’ve rejected the challenge to Roe v. Wade when it heard Dobbs v. Jackson Women’s Health Organization in 2022.

“In Dobbs, they could have just simply upheld the 15-week abortion ban, but in doing that you have to also consider is the underlying issue even defensible,” he said.

The court has already rejected Davis’ case once before. She appealed to the court in 2020 after the Sixth Circuit refused to toss out the couple’s case against her.

Though Justices Clarence Thomas and Samuel Alito said Davis had raised important questions about the scope of the court’s ruling on same-sex marriage, she hadn’t cleanly presented them, which is why they were respecting the court’s decision to reject her case.

“It would be beyond shocking if the court were to be receptive to it now,” said Jenny Pizer, chief legal officer at Lambda Legal, which fights for LGBTQ+ civil rights.

The Sixth Circuit specifically said Davis never argued in the district court that Obergefell should be overturned, which she would have had to do to make the argument at the Supreme Court. That’s another reason Pizer thinks getting the Supreme Court to reconsider it is a long shot.

Conservatives have also focused their political agenda on attacking the existence and rights of transgender people, not on same-sex couples and the freedom to marry, she said.

Societal Movement

The court’s decision to overturn the constitutional right to abortion in the Dobbs case, however, has inspired some on the right to look at the court’s ruling on same-sex marriage.

In a concurring opinion, Thomas called for the court to reconsider that decision. He argued the Fourteenth Amendment’s Due Process clause doesn’t secure any substantive right as the ruling said it did. But Bursch noted Thomas was alone in pushing for Obergefell to be re-evaluated and he said he’s aware of no other case challenging the opinion.

“The main thing is to watch for what’s happening socially and politically more than what’s happening in the legal system right now,” he said.

There has been movement on both of those fronts. Southern Baptists called for the overturning of Obergefell in a resolution titled “On Restoring Moral Clarity through God’s Design for Gender, Marriage, and the Family” that it passed at its annual convention on June 10.

Nonbinding resolutions calling for the Supreme Court to revisit the Obergefell decision were proposed in six states this year, said Naomi Goldberg, executive director of the Movement Advancement Project, a think tank that provides research to help equality. Four states proposed covenant marriage bills that exclude same-sex couples by creating a new legal category of marriage that’s only available to different sex couples, Goldberg added.

MassResistance, which describes itself as a pro-family activist organization, helped craft the language state legislatures used after looking at Thomas’ Dobbs decision.

“We were saying, you know, there should be an outcry about this because there really should,” said Brian Camenker, executive director of the organization that Southern Poverty Law Center describes as an anti-LGBTQ+ hate group. Asked why the group didn’t push for these state resolutions immediately after Dobbs came down, Camenker said it didn’t occur to them then.

James Esseks, who co-directs ACLU’s LGBTQ & HIV Project, dismissed the resolutions as mere political theater.

“It’s meaningless,” he said. “It does absolutely nothing.”