Supreme Court declines to hear case on constitutionality of same-sex marriage

The Supreme Court on Monday morning turned down a request from Kim Davis, a former county clerk in Kentucky, to reconsider its 2015 decision recognizing a constitutional right to same-sex marriage. In a brief, unsigned order, the justices rejected Davis’ petition for review of a ruling by a federal appeals court upholding an award of $100,000 to a gay couple to whom she had refused to issue a marriage license. That petition had also asked the justices to overrule the 2015 decision, Obergefell v. Hodges, arguing that a right to same-sex marriage “had no basis in the Constitution.” 

As is generally the case when it denies petitions for review, the court did not provide any explanation for its decision not to hear Davis’ case. If any justices disagreed with the decision not to take up the case, they did not note that disagreement publicly. 

The dispute began more than a decade ago, when – in the wake of the court’s decision in Obergefell – Davis, whose job description included issuing licenses, refused to issue a marriage license to a gay couple, David Moore and David Ermold. Davis then decided to stop issuing marriage licenses to any couple, gay or straight. This included Moore and Ermold, whom she told that she was acting “under God’s authority” and that they could get a marriage license in a different county.  

Two different lawsuits followed: one by Moore and Ermold, who contended that she had violated their constitutional right to marry; and one challenging her refusal to issue any marriage licenses. In the latter case, U.S. District Judge David Bunning ordered Davis to issue licenses to both gay and straight couples. That prompted Moore and Ermold to try once again to obtain a license, but Davis and her deputies rejected that request, as well. Kentucky eventually enacted a law that would accommodate county clerks like Davis by removing their names and signatures from the forms used for marriage licenses. 

Moore and Ermold’s case against Davis went to trial, and a jury awarded each of them $50,000. Davis then appealed to the U.S. Court of Appeals for the 6th Circuit, which upheld that award. It rejected Davis’ argument that requiring her to issue a marriage license to Moore and Ermold would have violated her First Amendment right to freely exercise her religion. In that court’s view, because Davis was acting on behalf of the government when she refused to issue the license, her actions were not protected by the First Amendment. 

Davis next went to the Supreme Court, asking the justices to take up her appeal. She asked the justices to decide whether she could rely on the First Amendment as a defense in the lawsuit, as well as to consider overruling the court’s decision in Obergefell. She contended that the 2015 ruling “had no basis in the Constitution” and left her “with a choice between her religious beliefs and her job.” 

Moore and Ermold initially declined to respond to Davis’ petition for review, but on Aug. 7, the Supreme Court instructed them to file a response – a process that only requires the vote of at least one justice. In a brief filed on Oct. 8, the couple urged the justices to deny review. First, they contended, Davis only made the “current version” of her First Amendment argument after nine years of litigation – too late, they said, to give the lower courts “a fair opportunity to address it.” Second, they wrote, Davis “affirmatively waived” her right to ask the court to overturn Obergefell when she told the lower court that she “did not want to relitigate” that decision. 

Davis’ petition for review, along with Moore and Ermold’s brief in opposition and Davis’ reply, was distributed to the justices on Oct. 22 for consideration at their conference on Nov. 7. She would have needed at least four votes for her petition to be granted, but Monday’s order indicates that she could not get them.