The U.S. Supreme Court on Monday, November 10, declined to hear a case that could have reopened debate over the constitutional right to same-sex marriage, leaving intact its 2015 decision in Obergefell v. Hodges.
Without comment, the justices rejected an appeal from Kim Davis, the former Rowan County, Kentucky clerk who drew national attention a decade ago for refusing to issue marriage licenses to same-sex couples following the Obergefell ruling. Davis had sought to overturn a lower-court order requiring her to pay more than $360,000 in damages and attorney’s fees to two couples who were denied marriage licenses.
Her appeal, filed by the conservative Liberty Counsel, asked the court to reverse that judgment and reconsider Obergefell itself. No justice noted a dissent or issued an opinion as the case was denied in the court’s routine order list.
Davis argued that the First Amendment’s protection of religious freedom should shield her from civil liability. The U.S. Court of Appeals for the Sixth Circuit rejected that claim earlier this year, writing that “when an official wields state power against private citizens, her conscience must yield to the Constitution.”
The Supreme Court that decided Obergefell in 2015 looked very different from today’s bench. Justice Anthony Kennedy, the key swing vote who authored the majority opinion, retired in 2018 and was replaced by Justice Brett Kavanaugh. Justice Ruth Bader Ginsburg, a liberal icon in the majority, died in 2020 and was succeeded by Justice Amy Coney Barrett. Three current justices, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, dissented in Obergefell.
Kennedy’s opinion for the court spoke of marriage as an expression of human dignity and love. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” Kennedy wrote. “In forming a marital union, two people become something greater than they once were.”
In recent weeks, several conservative justices have indicated they were not eager to revisit Obergefell. In an interview with The New York Times, Justice Amy Coney Barrett said there are “very concrete reliance interests” tied to same-sex marriage. Justice Samuel Alito, speaking at an event in Washington earlier this fall, criticized the decision in broad terms but acknowledged that it remains a “precedent of the court that is entitled to the respect afforded by the doctrine of stare decisis.”
At the same time, LGBTQ+ advocates have expressed concern about a series of rulings that have narrowed protections for transgender Americans. In recent months, the court allowed states to ban the use of puberty blockers and hormone therapy for trans youth, permitted the Trump administration to bar transgender Americans from serving in the military, and upheld a policy requiring U.S. passports to reflect a person’s sex assigned at birth.
Advocates welcomed Monday’s order as a reaffirmation of equality under the law. “The Supreme Court made clear today that refusing to respect the constitutional rights of others does not come without consequences,” said Kelley Robinson, president of the Human Rights Campaign. “When public officials take an oath to serve their communities, that promise extends to everyone, including LGBTQ+ people.”
The Supreme Court’s rejection of Davis’s appeal leaves the 2015 precedent untouched, ensuring that marriage equality remains the law of the land, at least for now.