Will the Supreme Court revisit its ruling on same-sex marriage?

Updated on Oct. 22 at 6:28 p.m.

In 2015, shortly after the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges, a local county clerk from Kentucky made national headlines when she refused on religious grounds to issue a marriage license to a gay couple, David Moore and David Ermold. On Nov. 7, the Supreme Court will consider a request from that clerk, Kim Davis, to overturn their 2015 decision. The justices could act on Davis’ petition for review as soon as Nov. 10. As a statistical matter, Davis may face tough odds on convincing the Supreme Court to grant review, but the real question is whether there are four votes to revisit Obergefell (and five to overrule it).

In 2015, Davis was the clerk of Rowan County, Kentucky. Her job description included issuing licenses – such as marriage licenses – to county residents. After the Supreme Court’s decision in Obergefell, Kentucky’s governor at the time, Steve Beshear, sent a letter to the clerks in all of the state’s counties, directing them to “license and recognize the marriages of same-sex couples.”

Although a county attorney told Davis that she would be required to issue marriage licenses to same-sex couples, Davis opted instead to stop issuing marriage licenses to anyone – gay or straight. While this moratorium was in effect, Davis refused to issue a marriage license to Moore and Ermold. She told the couple that she was acting “under God’s authority” and that they could get a marriage license in a different county.

Moore and Ermold filed a lawsuit against Davis, alleging that she had violated their constitutional right to marry. In a separate case regarding her refusal to issue any marriage licenses, U.S. District Judge David Bunning ordered Davis to issue the licenses to both gay and straight couples. But when Moore and Ermold returned to the Rowan County Clerk’s office, seeking a marriage license in light of Bunning’s order, Davis and her deputies once more refused to issue them one.

Davis’ office began to issue licenses again in 2016, after the Kentucky Legislature passed a law that sought to accommodate clerks opposed to same-sex marriage by removing their names and signatures from the licensing forms. Moore and Ermold’s case continued, and in 2023 a jury awarded them damages of $50,000 apiece.

Davis appealed to the U.S. Court of Appeals for the 6th Circuit, where she argued (among other things) that she could not be held liable because issuing Moore and Ermold a marriage license would have violated her right to freely exercise her religion.

Earlier this year, the 6th Circuit rejected Davis’ appeal. It reasoned that Davis is protected by the First Amendment when she is a private citizen, but she was acting on behalf of the government when she denied Moore and Ermold’s marriage license – an action that was not protected by the First Amendment. The court of appeals acknowledged that in Obergefell the Supreme Court observed that “many people ‘deem same-sex marriage to be wrong’ based on ‘religious or philosophical premises.’” “But those opposed to same-sex marriage,” the court of appeals wrote, “do not have a right to transform their ‘personal opposition’ into ‘enacted law and public policy.’” “The Bill of Rights,” the court stated, “would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates.”

Davis came to the Supreme Court on July 24, asking the justices to review the 6th Circuit’s decision. She contended that she had appeared before the court as an individual — “not as a state actor and not as a government official with some form of sovereign or qualified immunity.” And in that capacity, she argued, she could not be “on the hook for tort liability as a person, yet have no personal defenses” – such as the First Amendment – “available to her.”  

Davis also asked the justices to overrule their decision in 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.” “If ever there was a case of exceptional importance,” she asserted, “the first individual in the Republic’s history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it.”

After Davis filed her petition for review, Moore and Ermold initially waived their right to respond. But just one day after Davis’ petition was distributed to the justices’ chambers, the court directed Moore and Ermold to file a response – a process that only requires the vote of at least one justice.

Represented by (among others) William Powell and the Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection, Moore and Ermold called Davis’s case a “relatively easy” one “that does not merit” the justices’ intervention. First, they wrote, she didn’t make the “current version” of her First Amendment argument until relatively late in the game – in her reply in the 6th Circuit, “filed nine years into the case. By waiting so long to raise this argument,” they said, “Davis deprived” them, as well as the lower courts, “of a fair opportunity to address it.”

Second, Moore and Ermold continued, Davis had waived her right to challenge Obergefell, because she “‘expressly stated that she did not “want[] to relitigate the Supreme Court’s decision in Obergefell.”’” “The Court should hold her to that representation,” the men wrote.

In deciding whether to grant a particular petition for review, the justices take a variety of factors into account. One major criterion that they often consider is whether the lower courts are divided on the question that they are being asked to decide – a factor sometimes referred to as a “circuit split.” Davis does not argue that the courts of appeals are divided on same-sex marriage or on whether Obergefell should be overturned. Instead, she merely contends that it “was wrong when it was decided and it is wrong today.”

Whether the court will grant review really boils down to whether there are four votes to take up the question. Moreover, even if there are four justices who might be inclined to do so, they won’t want to grant review unless they are confident that there is a fifth vote to overturn Obergefell.

Although we don’t know whether Davis has the votes, it remains possible. After Moore and Ermold’s waiver, the court could have simply let Davis’ case move forward without calling for a response and then denied review in the fall. Instead, at least one justice – potentially Justice Samuel Alito or Neil Gorsuch, because the justices who participate in the cert pool would not yet have received a memorandum describing the case – wanted to think about it. 

Alito dissented in Obergefell, contending that the Constitution leaves the same-sex marriage “question to be decided by the people of each state.” During a recent appearance in Washington, D.C., Alito again criticized the decision but indicated that he was “not suggesting that the decision … should be overruled.”

Two of the other dissenters in Obergefell – Chief Justice John Roberts and Justice Clarence Thomas – are still on the court. Thomas, in Dobbs v. Jackson Women’s Health Organization, wrote a concurring opinion suggesting that Obergefell, among several other precedents, should be “reconsider[ed].” More recently, without addressing Obergefell directly, he told an audience at Catholic University’s Columbus School of Law that he didn’t “think that …  any of these cases that have been decided are the gospel.”

Three new Republican appointees have joined the court since Obergefell. During his first term in office, President Donald Trump appointed Gorsuch (to replace Justice Antonin Scalia, the fourth dissenter) and Justices Brett Kavanaugh and Amy Coney Barrett.

Whether at least five of these six justices would vote to overturn Obergefell remains to be seen.

The justices are scheduled to consider Davis’ case at their private conference on Nov. 7. As a general practice, the court does not grant review without considering a case at at least two consecutive conferences. If the justices deny review, however, that announcement could come as soon as Nov. 10.