On November 7, the U.S. Supreme Court’s nine justices will consider taking up a case that provides the Court with an opportunity to revisit Obergefell v. Hodges. In that 2015 decision, the Court decreed the U.S. Constitution requires states to recognize and license marriages between two people of the same sex.
At the time Obergefell was decided, most states had enacted laws defining marriage as a union of one man and one woman. The Court, however, decided by the narrowest of margins that the 14th Amendment contained a right to same-sex marriage, despite no one seeing it there before; and despite an unbroken 135-year history of all states only recognizing natural marriage after the amendment’s ratification.
The decision represented one of the most stunning acts of judicial hubris in American history; five unelected justices claimed the ability to redefine marriage for more than 300 million Americans.
The Court’s Decision
In Obergefell, the Court published a 5-4 decision holding that,
The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.
Justice Anthony Kennedy authored the Court’s majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan.
“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty,” Justice Kennedy wrote.
“The Court now holds that same-sex couples may exercise the fundamental right to marry.”
The Dissents
Four justices on the Court – three of whom are still actively serving today – dissented from the Court’s decision.
“The majority’s decision is an act of will, not legal judgment,” wrote Chief Justice John Roberts. “The right it announces has no basis in the Constitution or this Court’s precedent.”
The chief justice added,
The Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia.
In a separate dissent, Justice Clarence Thomas wrote, “The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built.”
In his dissent, Justice Samuel Alito wrote, “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”
Furthermore, Justice Alito defended the purpose of marriage, even absent its religious meaning. He explained that marriage is a quintessential human institution designed to create and protect the rights of children:
This [new] understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.
The late great Justice Antonin Scalia, who died in 2016, wrote his own characteristically sharp dissent from the Court’s decision.
“It is not of special importance to me what the law says about marriage,” Scalia wrote. “It is of overwhelming importance, however, who it is that rules me.”
He added,
Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.
Since the Court’s decision, President Donald J. Trump nominated three new conservative justices to the Court: Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Former President Joe Biden nominated liberal Justice Ketanji Brown Jackson.
Kim Davis’s Case
The Supreme Court will consider a petition from Kim Davis at their conference discussion on November 7. The justices periodically meet in conference to discuss and vote on potential cases to take up, and to vote on cases in which the Court has already heard oral arguments.
It takes the vote of four justices to consider a case.
After the Obergefell decision, Davis, a former Kentucky county clerk, temporarily stopped issuing any marriages licenses as she sought an accommodation for her religious beliefs about marriage.
Three plaintiffs, including David Ermold and David Moore, subsequently sued Davis for not issuing them a marriage license. As a result, Davis was jailed for six days and personally fined $360,000 based solely on emotional distress damages for “hurt feelings” for her refusal to issue the license.
Davis is asking the Court to review her case and the judgement against her. Attorneys with Liberty Counsel are representing her in the legal proceedings.
Davis’ attorneys have presented the Court with two questions:
- Whether the First Amendment is an affirmative defense to a government official sued in her individual capacity where the claim is for emotional distress allegedly resulting in hurt feelings connected to religious expression.
- Whether the Obergefell opinion was wrongly decided and should be overturned.
Liberty Counsel Founder and Chairman Mat Staver said in a statement, “Obergefell v. Hodges cannot not override the First Amendment to send someone to jail for their religious beliefs on marriage, and it certainly does not establish a right to obtain a marriage license with a specific clerk’s name on it.”
“Kim Davis’ case underscores why the U.S. Supreme Court should overturn the wrongly decided Obergefell opinion because it threatens the religious liberty of Americans who believe that marriage is a sacred union between one man and one woman.”
Staver continued,
Like the abortion decision in Roe v. Wade, Obergefell was egregiously wrong from the start. This opinion has no basis in the Constitution. The High Court should overturn this egregious opinion from 2015.
While the case is scheduled for conference on Nov. 7, the Court could discuss the case at multiple conferences before agreeing, or refusing, to hear the case.
Please pray for Kim Davis as the Court considers her petition and pray the Court will reconsider its egregious 2015 mistake.
The case is Kim Davis v. David Ermold.
Related articles and resources:
Biblical Perspective on Homosexuality and Same-Sex Marriage
It’s Good the Left Fears the Overturning of Gay ‘Marriage’
Legalization of Same-Sex Marriage Harms Children and Society
Why Focus on the Family Believes Obergefell Must Be Struck Dow
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