Kim Davis Tees Up Supreme Court to Reverse Marriage Equality Ruling

It’s been a pretty relentless news cycle these past few months and unfortunately, Kim Davis has decided to come crawling back into the headlines to make it worse.

The former Kentucky county clerk—who became infamous for denying marriage licenses to gay couples after the Supreme Court’s marriage equality ruling in Obergefell v. Hodges—is now arguing in federal court that Obergefell should be overturned, for the same reasons the high court shredded Roe v. Wade in 2022.

Davis is appealing a jury’s 2023 decision that she should have to pay $100,000 to a gay couple to whom she denied a marriage license. Davis argued that granting a license to David Ermold and David Moore in 2015 violated her religious beliefs; a deputy clerk eventually gave them a license. (The case is called Ermold v. Davis.) In a brief to the Sixth Circuit Court of Appeals, her lawyers argue that “Obergefell should be overturned for the same reasons articulated by the court in Dobbs”—mainly that it “was wrong when it was decided and it is wrong today because it was based entirely on the ‘legal fiction’ of substantive due process, which lacks any basis in the Constitution.”

This is a regurgitation of Justice Clarence Thomas’ concurrence in the Dobbs case that overturned Roe in which he argued that the court should overrule not only marriage equality but also the right to same-sex intimacy (Lawrence v. Texas, 2003) and the right for married couples to use birth control (Griswold v. Connecticut, 1965). Thomas called these substantive due process decisions “demonstrably erroneous.” While no other Justice joined that writing, Justices Thomas, Samuel Alito, and John Roberts all dissented in Obergefell, which was a 5-4 ruling. It’s well within the realm of possibility that, on this 6-3 court, there are four votes to hear a marriage equality case and five votes to overturn Obergefell. (Davis’ brief says her appeal demonstrates the need to “reconsider” Lawrence and Griswold as well.)

For good measure, Davis’ lawyers also cited the “history and tradition” test that Alito used in Dobbs. They wrote that, “even if substantive due process is not itself overturned, Obergefell should be, because the right to same-sex marriage is neither carefully described nor deeply rooted in the nation’s history.”

The Sixth Circuit has not yet said if it will hold arguments in the case, but the suit could still land at the Supreme Court in the future. The high court declined to hear an earlier appeal from Davis in 2020, but that was before the court had a conservative supermajority.

Davis is being represented by Florida-based Liberty Counsel, a firm that opposes the state’s abortion ballot measure. The group said that, if it passed, they would ask the state Supreme Court to declare fetal personhood or a total abortion ban. Liberty Counsel chairman Mat Staver told Bloomberg Law in April: “We have an open door to go back and establish personhood.” He added, “The Florida Supreme Court isn’t out of the picture yet.” Staver told Bloomberg that if the tactic works in Florida, it could be used as a strategy across the country as nearly all state constitutions have “right to life” language. (Staver has represented Davis since at least 2015, when he compared her to a Jewish person living in Nazi Germany.)

Overall, this development is a stark reminder that the right to privacy established in Griswold and reaffirmed in Roe undergirds so many other rights that protect people’s relationships. The Supreme Court remains a key issue in November and hopefully, this news is a strong nudge for now-presumptive nominee Vice President Kamala Harris to support court expansion rather than just term limits.