Supporters of same-sex marriage breathed a sigh of relief when the Roberts court denied review last year in Davis v. Ermold, a case in which a county clerk in Kentucky, Kimberly Jean Davis, challenged Obergefell v. Hodges, the court’s 2015 decision recognizing a constitutional right to same-sex marriage. Davis’ hope was that a “religious conscience” challenge to the issuance of same-sex marriage licenses might prevail. That hope was bolstered when Justice Anthony Kennedy stepped down in 2018 and was replaced by Justice Brett Kavanaugh – all of this while Davis’ case was working its way through the federal district and appellate courts. Perhaps, Davis thought, a more conservative court would revisit its landmark 5-4 ruling. But it was not to be; Obergefell was safe.
As we come upon its anniversary, I’d like to use my first recurring column to explore the status of that landmark case, and the challenges I believe it may continue to face.
The futile petition
It’s an old maxim: “Hard cases make for bad law.” With Davis, the maxim might well be: “Bad cases make for no law.” And, regardless of where one stands on the underlying issues, Davis’ case was a very bad one.
By way of background, Kim Davis was the county clerk for Rowan County, Kentucky. In 2015, shortly after Obergefell was decided, Davis made headlines when she refused to issue marriage licenses to gay couples. When she was asked “[u]nder whose authority” she denied these licenses, Davis replied, “under God’s authority.” On that basis, she defied a federal court order to issue marriage licenses to such couples, six of whom sued. In 2023, a jury ordered Davis to pay $100,000 in damages to one couple, David Ermold and David Moore; a federal district court judge later added $260,000 in attorneys’ fees and expenses.
When the matter came before the U.S. Court of Appeals for the 6th Circuit, a glaring problem emerged – Davis sought review of a claim she had previously conceded she had failed to raise below – and it was a big one. As that court duly noted: “Ironically, . . . it appears that Davis did not preserve [the] issue [of overruling Obergefell] because she never raised it below. She did not argue that Obergefell should be overturned in her motion to dismiss, her motion for summary judgment, or her motion for judgment as a matter of law. Indeed, in moving to dismiss, Davis expressly stated that she did not ‘want to relitigate the Supreme Court’s decision in Obergefell.’”
Another problem for Davis: The 6th Circuit held that she did not have either “qualified immunity” as a public employee or any colorable First Amendment “free exercise of conscience” claims. For one thing, as that court stressed: “The First Amendment protects ‘private conduct,’ not ‘state action.’” Yet, it was that very state action in which she engaged (denying marriage licenses) that Davis claimed was protected by the First Amendment.
Given this, it was no surprise that – 10 years after her case began – the Supreme Court declined to grant Davis’ petition, with no justice dissenting from that denial.
Beyond its bad facts and weak legal arguments, Davis was also a lone-wolf case with no significant institutional backing. Indeed, unlike Obergefell, in which numerous briefs opposed same-sex marriage, only two groups (the National Organization for Marriage and the Claremont Institute) supported her petition.
The new and improved anti-Obergefell campaigns
Forget Davis. What if a future case with “good” facts, no procedural hurdles, and a new legal argument came before the court? What then? And what if that case were the end product of a well-orchestrated campaign analogous to that waged in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade?
As an initial matter, according to a recent Gallup poll, support for same-sex marriage fell from a high of 71% in 2022 and 2023 to 65% today. This has primarily been a result of falling public opinion among Republicans, a majority of whom supported same-sex marriage in 2021 and 2022 (at 55%), but now only 37% of whom do.
Perhaps sensing such potential momentum, various organizations have taken aim at Obergefell – and the pace has accelerated. For example, last year, the Southern Baptist Convention voted overwhelmingly to urge the Supreme Court to overturn the right to same-sex marriage. As noted by New York Times reporter Ruth Graham: “The nation’s largest Protestant denomination was motivated,” in particular, “by conservative Christians’ success in reversing Roe v. Wade.” The Liberty Counsel, a public policy ministry that includes an association of churches, has also expressed that “The High Court [should seize] the opportunity to finally overturn this egregious opinion from 2015.”
MassResistance, a grassroots activist group, has focused specifically on state lawmakers, encouraging them to issue resolutions calling on the high court to overrule Obergefell. According to Heather Scott (an Idaho Republican state representative), “We need to continue to put pressure on [the court] to override [Obergefell]. Our [state] Constitution is very clear: we only recognize marriage between a man and a woman.” This has had tangible effects: lawmakers in Idaho, Michigan, Montana, Oklahoma, North Dakota, and South Dakota have introduced a variety of such resolutions.
Many anti-Obergefell organizations have adopted a new legal strategy: protecting children. The Greater Than “protect children” campaign, for example, is a coalition of 47 conservative organizations dedicated to stopping same-sex marriage. According to them: “Children are greater than equal. And it’s time we fought for their rights.” Although the contours of this legal theory are not entirely clear, it seems to go something like this: Imagine a state that passed a law that prohibited same-sex couples from adopting children. The aim is to alter the constitutional balance between children’s rights and gay rights, arguing that children’s “need” for male and female parents should take priority over the rights of same-sex couples. Earlier this year, Katy Faust, president and founder of Them Before Us, echoed this theme at the National Conservatism Conference. The title of her remarks was “How Obergefell Commodified Children.” According to a recent Seattle Times story, “Faust argued the way to reignite a seemingly settled cultural debate over same-sex marriage is to reframe it — away from the rights of adults and toward children she claims are ‘the real victims.’”
The influential Heritage Foundation, which spearheaded “Project 2025,” has also promoted this narrative. It has launched its “Put Family First” initiative, which contends that “[e]very child conceived deserves to be born to a married mother and father who will love, guide, and protect them throughout their lives.” Under the initiative, Heritage commits to “advance policies at the state and federal level to restore the nuclear family to the center of American life” “with courage and compassion.”
This campaign also has some financial backing. For example, the founder of Hobby Lobby is reported to have funded Them Before Us.
Finally, what position might the federal government take? Although President Donald Trump’s views on the matter have been fluid, we likely know where Solicitor General D. John Sauer stands: in 2015, Sauer filed an amicus brief on behalf of 57 members of Congress opposing same-sex marriage. Specifically, he argued that “out of deference to the States as separate sovereigns in our system of federalism, this Court should be reluctant to intrude into areas of traditional state concern, especially the law of marriage and domestic relations.”
Getting the votes
Those wishing to persuade the court to revisit Obergefell and then reverse it face several obstacles, one of which is its ruling in the 2017 case of Pavan v. Smith. In Pavan, the court considered whether Arkansas could prohibit the birth mother’s wife from being listed on their child’s birth certificate. Over a dissent by Justice Neil Gorsuch (joined by Justices Clarence Thomas and Samuel Alito), the court ruled (without hearing argument) that the law governing birth certificates in Arkansas discriminated against same-sex couples and was therefore unconstitutional. In doing so, the court’s unsigned opinion drew on the language of Obergefell and stressed that “‘married same-sex couples [enjoy the same] access to the ‘constellation of benefits that the Stat[e] ha[s] linked to marriage.’”
While the Pavan majority treated the birth certificate issue as resolved, the dissent characterized it otherwise. For example, consider Gorsuch’s dissent, which advanced at least four relevant arguments:
- “Summary reversal is usually reserved for cases where ‘the law is settled and stable,’” which he did not believe to be the case in Pavan;
- “[N]othing in Obergefell spoke (let alone clearly) to the question whether” a state can require biological birth certificates of male and female parents;
- “[T]he State argued that rational reasons exist for a biology-based birth registration regime, reasons that in no way offend Obergefell—like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders”; and
- “[A]s the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.”
Significantly, Gorsuch’s dissent seems to concede that Obergefell is good law, although the dissent posits that Obergefell is not immune to exceptions. Thus, while Gorsuch and his colleagues did not urge overruling Obergefell, they sought to create an exception to it – perhaps the way exceptions were created to Roe before it was overruled.
Let us move next to the chief justice. Although Roberts dissented in Obergefell, he likely voted with the majority in Pavan. (I say likely because, as Joshua Matz has pointed out, a justice can dissent from a summary action without publicly registering a dissent.)
As for the other conservative members of the court:
- Kavanaugh has described same-sex marriage as a “very important right” and said gay Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” In his dissent in Bostock v. Clayton County, he wrote: “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives.” That said, Kavanaugh left such corrective measures to Congress, not to the courts.
- Justice Amy Coney Barrett, in her 2020 confirmation hearing, explained that “Pavan v. Smith is binding precedent that I will faithfully follow if confirmed.” In her 2025 book Listening to the Law, Barrett listed marriage and “sexual intimacy” as “fundamental” rights that the court would uphold. (Somewhat similar statements were made by conservative justices during their confirmation hearings when asked about Roe v. Wade and Planned Parenthood v. Casey, though in the end they abandoned those precedents.)
- Even Alito, one of Obergefell’s fiercest critics, seems to have somewhat retreated. Last October, in a speech at George Mason University’s Antonin Scalia Law School, he stressed that the court was “too quick to read certain constitutional provisions to embody broad abstract principles and to justify results that would have astonished those who framed and ratified those provisions.” At the same time, he emphasized, “I am not suggesting that the decision in that case should be overruled. I have to state that so that what I say today is not misunderstood.” As he saw it, Obergefell is “a precedent of the Court that is entitled to the respect afforded by the doctrine of stare decisis” – the principle that courts should not normally overturn their prior precedent without a good reason.
- As for Thomas, he’s a solid vote to overturn Obergefell. In his separate opinion in Dobbs, Thomas wrote: “[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ . . . we have a duty to ‘correct the error’ established in those precedents.”
Speculations: law and life in an anti-Obergefell world
Given this, the hurdle to getting Obergefell reconsidered is quite high. First, it would require a state law (and a coherent legal theory) challenging this precedent or attempting to limit its reach. Once there, even if the current court granted review (a big if), the prospect of overturning Obergefell would appear rather slim, at least based on many of the justices’ prior votes and public comments.
Moreover, the justices might pause at the consequences of such a ruling. Currently, 24 states have either statutes or constitutional amendments banning same-sex marriage. But it’s not clear whether and how such laws would go back into effect. The first thing to note is the federal Respect for Marriage Act, passed in 2022. That law requires all states to recognize same-sex marriages performed in other jurisdictions, domestic or foreign. In other words, if a couple was married in a state where same-sex marriage remained legal and then moved to a state which had banned same-sex marriage, the latter state would still have to recognize that marriage.
Then again, there could be a constitutional attack on RAMA. Conservative groups might raise a 10th Amendment states-rights argument to prevent RAMA from thwarting state laws that bar same-sex marriage. That argument would be premised on the idea that certain powers, such as marital arrangements long left to the states, remain “reserved to the States.”
Finally, what about retroactivity? What would likely happen to marriages performed in states where same-sex marriage was later deemed illegal? Could those marriages be rescinded? Although that would appear to raise significant due process concerns (and even Kim Davis did not seek such an outcome), it remains an open question.
Of course, much of this hinges on many factors – some of them impossible to predict – including the specific type of anti-Obergefell state law proposed, the legal theory behind it, the composition of the court when a petition is considered, the justices’ willingness to follow their prior statements honoring Obergefell, the court’s interpretation of stare decisis, the influence of RAMA, the potential outcome if that law is challenged, and subsequent developments in the states. But two points are clear: an invigorated anti-Obergefell campaign is underway, and its path to success is quite complicated.
