Supreme Court won’t reconsider Obergefell to bail out Kentucky clerk who denied same-sex marriage licenses

WASHINGTON (CN) — The Supreme Court won’t review a case asking to overturn the right to same-sex marriage, the justices said on Monday, rejecting an appeal from Kim Davis, the onetime Kentucky clerk who famously refused to issue a marriage license to two men in 2015.

Davis, who claims to be a devout Christian, faces $360,000 in legal fees for denying David Ermold and David Moore a marriage license. She asked the justices to help her avoid paying up by overturning Obergefell v. Hodges , the landmark ruling legalizing same-sex marriage.

“Obergefell started this mess, and Obergefell is part of the core problem that we have here,” Mat Staver, founder and chairman at the Liberty Counsel, which represents Davis, told Courthouse News in July.

While same-sex marriage has gained broad support since 2015 when Obergefell was decided, the conservative majority on the Supreme Court has been increasingly hostile to LGBTQ+ rights. Some court watchers worried that Obergefell could be on the chopping block after the justices overturned Roe v. Wade in 2022.

Obergefell and Roe were both decided using substantive due process — the backbone of right-recognizing jurisprudence — but Davis called the principle “fiction,” piggybacking on arguments made by Justice Clarence Thomas, a George H.W. Bush appointee.

“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold , Lawrence , and Obergefell ,” Thomas wrote in concurrence on Roe , referring to rulings upholding the right to contraceptives and striking down anti-sodomy laws. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

Davis gained national attention for her opposition to same-sex marriage after declaring she was acting “under God’s authority” to deny marriage licenses while working as a clerk in Rowan County, Kentucky. Davis refused to relent even after she ended up in jail for defying a court order, claiming that issuing same-sex marriage licenses “would be an act of disobedience to my God.”

Ermold and Moore sued her in July 2015. Their case didn’t go to trial until 2023, but their patience was rewarded after a jury awarded each of them $50,000 and $260,000 in legal fees.

The case dragged on for the better part of a decade in part because Davis was originally sued in her official position as an officer of the state. Davis claimed that her government job gave her immunity from the lawsuit.

A federal judge ruled that she was not immune from a pair of lawsuits in 2022.

Ermold and Moore’s claim included emotional damages against Davis in her personal capacity. This time, Davis wielded the First Amendment, urging the justices to recognize that officials have free speech rights even when acting in their official capacity.

The couple countered that even with the high court’s review, Davis wouldn’t prevail because the Sixth Circuit Court of Appeals held that her conduct exceeded the scope of any personal right when it rejected her appeal earlier this year.

“Rather than attempting to invoke a religious exemption for herself, Davis instead exercised the full authority of the Rowan County Clerk’s office to enact an official policy of denying marriage licenses to same-sex couples, one every office employee had to follow,” U.S. Circuit Judge Chad Readler wrote.

Even if the court wanted to review Obergefell , Ermold and Moore said this case would be a bad vehicle. They also warned against allowing government officials to violate clearly established law based on the assumption that they’d later be exonerated based on the reversal of precedent.

“It would incentivize other officials to violate constitutional rights they dislike, in the hope that this court will someday bail them out by overruling the precedent they disregarded,” the couple wrote.

“The Supreme Court’s denial of review confirms what we already knew: Same-sex couples have a constitutional right to marry, and Kim Davis’s denial of marriage licenses plainly violated that right,” the Institute for Constitutional Advocacy and Protection’s senior counsel, William Powell, told Courthouse News.

“This is a win for same-sex couples everywhere who have built their families and lives around the right to marry,” he added.

Meanwhile, supporters of Davis’s petition such as Liberty Counsel, a Christian ministry legal advocacy group, scorned the decision.

“Davis was jailed, hauled before a jury and now faces crippling monetary damages based on nothing more than purported hurt feelings," Liberty Counsel founder and chairman Mat Staver said in a press release.

“By denying this petition, the high court has let stand a decision to strip a government defendant of their immunity and any personal First Amendment defense for their religious expression,” he added.

Staver said Liberty Counsel will continue to fight to overturn *Obergefell * until the Supreme Court does so.

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