Will the Supreme Court revisit its ruling on same-sex marriage?

In 2015, shortly after the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges, a local county clerk from Kentucky made national headlines when she refused on religious grounds to issue a marriage license to a gay couple, David Moore and David Ermold. That clerk, Kim Davis, is back in the news again this summer, this time because she has asked the justices to overturn their 2015 decision. Although, as a statistical matter, Davis may face tough odds on convincing the Supreme Court to grant review, the real question is whether there are four votes to revisit Obergefell (and five to overrule it).

In 2015, Davis was the clerk of Rowan County, Kentucky. Her job description included issuing licenses – such as marriage licenses – to county residents. After the Supreme Court’s decision in Obergefell, Kentucky’s governor at the time, Steve Beshear, sent a letter to the clerks in all of the state’s counties, directing them to “license and recognize the marriages of same-sex couples.”

Although a county attorney told Davis that she would be required to issue marriage licenses to same-sex couples, Davis opted instead to stop issuing marriage licenses to anyone – gay or straight. While this moratorium was in effect, Davis refused to issue a marriage license to Moore and Ermold. She told the couple that she was acting “under God’s authority” and that they could get a marriage license in a different county.

Moore and Ermold filed a lawsuit against Davis, alleging that she had violated their constitutional right to marry. In a separate case regarding her refusal to issue any marriage licenses, U.S. District Judge David Bunning ordered Davis to issue the licenses to both gay and straight couples. But when Moore and Ermold returned to the Rowan County Clerk’s office, seeking a marriage license in light of Bunning’s order, Davis and her deputies once more refused to issue them one.

Davis’ office began to issue licenses again in 2016, after the Kentucky Legislature passed a law that sought to accommodate clerks opposed to same-sex marriage by removing their names and signatures from the licensing forms. Moore and Ermold’s case continued, and in 2023 a jury awarded them damages of $50,000 apiece.

Davis appealed to the U.S. Court of Appeals for the 6th Circuit, where she argued (among other things) that she could not be held liable because issuing Moore and Ermold a marriage license would have violated her right to freely exercise her religion.

Earlier this year, the 6th Circuit rejected Davis’ appeal. It reasoned that Davis is protected by the First Amendment when she is a private citizen, but she was acting on behalf of the government when she denied Moore and Ermold’s marriage license – an action that was not protected by the First Amendment. The court of appeals acknowledged that in Obergefell the Supreme Court observed that “many people ‘deem same-sex marriage to be wrong’ based on ‘religious or philosophical premises.’” “But those opposed to same-sex marriage,” the court of appeals wrote, “do not have a right to transform their ‘personal opposition’ into ‘enacted law and public policy.’” “The Bill of Rights,” the court stated, “would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates.”

Davis came to the Supreme Court last month, asking the justices to review the 6th Circuit’s decision. She also asked the justices to overrule their decision in Obergefell, arguing that a right to same-sex marriage “had no basis in the Constitution” and left her “with a choice between her religious beliefs and her job.”

After Davis filed her petition for review, Moore and Ermold had two options. They could file a response to the petition, or they could forgo their right to respond – known as a waiver. There are any number of reasons why litigants may decide to waive the opportunity to respond to a petition, ranging from a desire to signal that they do not deem the case worthy of their (or the justices’) time to considerations of timing or finances. But litigants are only required to submit a brief form memorializing their decision to waive, so there is no way to know why Moore and Ermold ultimately chose in early August to waive their right to respond. Two days later, Davis’ petition was distributed to the justices for their consideration.

Seven of the nine justices participate in a labor-saving activity known as the “cert pool,” in which one clerk from one of the seven justices’ chambers analyzes a petition and drafts a memorandum that makes recommendations about whether to grant review. Justices Samuel Alito and Neil Gorsuch do not participate in the cert pool and screen petitions on their own.

When the litigants who won in the lower court waive their right to respond, the Supreme Court normally takes one of two steps: It can deny review based solely on the petition, without ever hearing from the other side. In this scenario, the justices never discuss the case at their private conference. Alternatively, the justices can direct the litigants to file a response to the petition – a process known as a “CFR,” or “call for a response.” (The justices virtually never grant review without hearing from both sides of a case.) Any single justice can call for a response, and it indicates that at least one justice wants to see the other side’s arguments before the court decides whether to grant or deny review.

On Thursday, the Supreme Court directed Moore and Ermold to file a response to Davis’ petition. Their response is currently due on Sept. 8, but Moore and Ermold on Tuesday requested an extension to Oct. 8. With its move on Thursday, the court essentially took Davis’ case out of the group of cases facing virtually automatic denial (without a call for a response) into the group of cases that could theoretically be granted.

In deciding whether to grant a particular petition for review, the justices take a variety of factors into account. One major criterion that they often consider is whether the lower courts are divided on the question that they are being asked to decide – a factor sometimes referred to as a “circuit split.” Davis does not argue that the courts of appeals are divided on same-sex marriage or on whether Obergefell should be overturned. Instead, she merely contends that it “was wrong when it was decided and it is wrong today.”

Whether the court will grant review really boils down to whether there are four votes to take up the question. Moreover, even if there are four justices who might be inclined to do so, they won’t want to grant review unless they are confident that there is a fifth vote to overturn Obergefell.

Although we don’t know whether Davis has the votes, it remains possible. After Moore and Ermold’s waiver, the court could have simply let Davis’ case move forward without calling for a response and then denied review in the fall. Instead, at least one justice – potentially Justice Samuel Alito or Neil Gorsuch, because the justices who participate in the cert pool would not yet have received a memorandum describing the case – at least wanted to think about it. 

Alito dissented in Obergefell, contending that the Constitution leaves the same-sex marriage “question to be decided by the people of each state,” and two of the other dissenters – Chief Justice John Roberts and Justice Clarence Thomas – are still on the court. (Thomas, in Dobbs v. Jackson Women’s Health Organization, wrote a concurring opinion suggesting that Obergefell, among several other precedents, should be “reconsider[ed].”) During his first term in office, President Donald Trump appointed Gorsuch (to replace Justice Antonin Scalia, the fourth dissenter) and Justices Brett Kavanaugh and Amy Coney Barrett.

Whether at least five of these six justices would vote to overturn Obergefell remains to be seen.