OKLAHOMA CITY (LifeSiteNews) — Former Rowan County, Kentucky, county clerk Kim Davis is once again asking the U.S. Supreme Court to revisit its 2015 Obergefell v. Hodges ruling that forced all 50 states to recognize homosexual “marriage,” and to overturn the price she has personally paid for standing against it.
In the wake of Obergefell a decade ago, Davis declared that she would cease issuing marriage licenses, saying that her required signature on the documents would constitute a personal endorsement of homosexual unions that violated her Christian beliefs, for which she has dealt with lawsuits, judges, and politicians ever since. In 2023, she was ordered to pay $100,000 to two homosexuals to whom she refused to issue a “marriage” license on top of damages awarded to other plaintiffs. Another $260,000 was later added for attorneys’ fees and costs.
The nonprofit Liberty Counsel vowed to appeal on her behalf and filed a brief with the Sixth Circuit Court of Appeals in July 2024. A three-judge panel ruled against Davis, and the full Sixth Circuit declined to reconsider, so Liberty Counsel announced in April that it would be asking the Supreme Court to step in, arguing that if the First Amendment did not protect her when she was a government employee, it must protect her now as a private citizen.
Liberty Counsel announced on July 24 that it has now filed that challenge, contending that “Davis was jailed, hauled before a jury, and now faces crippling monetary damages based on nothing more than purported emotional distress,” setting a precedent that if left standing “would mean government officials shed their constitutional rights upon election, appointment, or other entrance of government service. That cannot be right.”
Specifically, the suit wants the nation’s highest court to answer “[w]hether the First Amendment Free Exercise Clause provides an affirmative defense to tort liability based solely on emotional distress damages with no actual damages in the same manner as the Free Speech Clause”; “[w]hether a government official stripped of Eleventh Amendment immunity and sued in her individual capacity based solely on emotional distress damages with no actual damages is entitled to assert individual capacity and personal First Amendment defenses in the same or similar manner as any other individual defendant […] or does she stand before this Court with no constitutional defenses or immunity whatsoever”; and “[w]hether Obergefell v. Hodges […] and the legal fiction of substantive due process, should be overturned.”
Thirty-two states still have duly-enacted same-sex “marriage” bans on the books, according to World Population Review (which lists 33, but has not been updated to reflect Colorado’s recent repeal of its unenforced ban), all of which are blocked from enforcement. Only 18 states plus the District of Columbia have no ban in place.
As a practical matter, even if the Supreme Court reversed Obergefell, recognition of same-sex “marriage” would still be mandatory nationwide, thanks to former President Joe Biden signing the so-called “Respect for Marriage Act” in 2023.
Three of the current sitting justices — Chief Justice John Roberts and conservatives Justices Clarence Thomas and Samuel Alito — dissented from Obergefell. The latter two are considered reliable votes to overturn if the chance arises, given statements both have made in the years since. But it is less certain how Roberts and the Court’s three more recent Republican appointees would rule, given past statements about deferring to precedent and their mixed records on cases important to conservatives.
Meanwhile, at least half a dozen states have adopted resolutions urging the nation’s highest court to reverse Obergefell. They have no legal force nor can they begin any legal battle that could eventually put the issue back before the nation’s highest court, but they raise awareness of an issue that, while long since declared “settled” by the establishments of both parties, remains a serious affront to biblical morality and a grave concern for conservative Christians.
Social conservatives are likely to have an uphill battle on the issue for the foreseeable future. In July 2024, the Republican Party adopted a dramatically shortened national platform with various changes sought by returned President Donald Trump. Among them was removing language declaring that “Traditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society,” and calling for that understanding to be reflected in law, including with the “reversal” of Obergefell as judicial activism.
