Why the Supreme Court is Highly Unlikely to Overturn Obergefell in the Kim Davis Case

Kim Davis, a former Kentucky county clerk who was sued for refusing to issue marriage licenses to same-sex couples has filed a cert. petition asking the Supreme Court to overturn Obergefell v. Hodges, the landmark 2015 ruling striking down laws banning same-sex marriage:

Ten years after the Supreme Court extended marriage rights to same-sex couples nationwide, the justices this fall will consider for the first time whether to take up a case that explicitly asks them to overturn that decision.

Kim Davis, the former Kentucky county clerk who was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple on religious grounds, is appealing a $100,000 jury verdict for emotional damages plus $260,000 for attorneys fees.

In a petition for writ of certiorari filed last month, Davis argues First Amendment protection for free exercise of religion immunizes her from personal liability for the denial of marriage licenses.

More fundamentally, she claims the high court’s decision in Obergefell v Hodges — extending marriage rights for same-sex couples under the 14th Amendment’s due process protections — was “egregiously wrong.”

I have been getting media calls about this, and have seen expressions of concern from people worried about it. My Cato Institute colleague Walter Olson has a helpful Facebook post explaining why such fears are likely misguided. I reprint it here, with his permission:

Dozens of friends are freaking out at news reports that Kim Davis, the disgraced Kentucky clerk who has struck out in court up to now, is asking the Supreme Court to overturn Obergefell, the same-sex marriage ruling.

I understand why people get upset, but here’s why this story doesn’t even make it up to number 200 on my list of current worries:

Pretty much anyone with a pulse who’s exhausted other avenues can file a certiorari petition and it doesn’t mean the Supreme Court will hear the case, let alone agree to revisit one of its most famous modern rulings, let alone resolve it the wrong way.

“People said they weren’t going to overturn Roe, then they did.”

Court-watchers have known literally for decades that there was a big chance Roe would go. Overturning it was the number one project for much of the legal Right through countless confirmation battles. Thousands of anti-Roe meetings were held and articles published. There is no comparable head of steam on Obergefell, or really any head of steam at all.

“Terrible things are happening and I don’t want to be told that I’m overreacting.”

I agree that terrible things are happening. Accurately assessing which terrible things have a serious probability of happening soon is essential in directing our energy to where it can do the most good.

“I don’t trust the Supreme Court.”

You don’t have to trust them, but you should practice the most useful skill in Court-watching: counting to five. The anti forces will get Thomas and probably Alito. Roberts was strongly against at the time but has been careful to treat it as legitimate precedent since. Gorsuch usually sides with religious litigants but also wrote Bostock, the most important gay rights decision in years, and Roberts raised eyebrows by joining him. Most people who know Barrett and Kavanaugh believe them to have zero appetite for reopening this issue. Trump isn’t pushing for it. Granting cert takes four votes, overturning a case five. I don’t see Davis getting up even to three on the question of whether to overturn Obergefell.

Each time I write a version of this prediction I get called rude names, as if I were consciously misleading people for some fell purpose. But as someone with real rights of my own at stake, I’m just trying to give you my honest reading. We’ll probably know within three months whether the Court will hear Davis’s case and if so on what question presented. Save your anger till then.

Both Walter and I are longtime same-sex marriage supporters, since before it was popular. And, as Walter notes, his stake in this issue goes beyond legal theory (he is a gay man in a same-sex marriage). That doesn’t by itself prove us right. But it does mean Walter, at least, cannot easily be accused of downplaying concerns about reversing Obergefell because he doesn’t really care about the issue.

In a post on the tenth anniversary of Obergefell, I explained its great benefits, why it reached the  right result (even though it should have used different reasoning), and why it is likely to prove durable.  Maybe I will be proven wrong on the latter point. But if Obergefell does get overruled, it won’t be in the Kim Davis case.

Her case has multiple flaws as a potential vehicle for the Obergefell issue. Among other things, that question is an appendage to a dubious religious-liberty claim, under which Davis claims that government officials have a First Amendment right to refuse to issue marriage licenses to couples they disapprove of on religious grounds. It’s worth noting, here, that some people have religious objections to interracial marriages and interfaith marriages, among other possibilities. Does a clerk with religious objections have a constitutional right to refuse to issue a marriage license to an interracial couple or to one involving an intermarriage between a Jew and a Christian? The question answers itself.

The court of appeals rightly rejected Davis’ claim on the grounds that “Davis is being held liable for state action, which the First Amendment does not protect—so the Free Exercise Clause cannot shield her from liability. The First Amendment protects ‘private conduct,’ not ‘state action.’”

This is pretty obviously right. In the private sector, I think there often is a First Amendment free speech or religious liberty right to refuse to provide services that facilitate same-sex marriages, as with bakers who refuse to bake a cake for a same-sex wedding, website designers who refuse to design a site for such a wedding, and so on. While I have little sympathy for such people’s views, they do have constitutional rights to act on them in many situations. And same-sex couples almost always have other options for getting these kinds of services.

Public employees engaged in their official duties are a very different matter. They are not exercising their own rights, but the powers of the state. And the services they provide are often government monopolies to which there is no alternative.

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