LGBTQ+ rights back in the crosshairs

Devin Dwyer reported for ABC News on August 11, that the "Supreme Court [is being] formally asked to overturn landmark same-sex marriage ruling," A summary with additional commentary follows.

Ten years after the landmark Obergefell v. Hodges decision legalized same-sex marriage nationwide, the Supreme Court is being asked to overturn that ruling directly. The challenge comes from a familiar source: one Kim Davis, the former Kentucky county clerk who had her 15 minutes in 2015 when she refused to issue marriage licenses to gay couples. She did so in the face of actual law.

The case against Davis and questionable legal standing

Davis was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple on religious grounds. She is now appealing a $100,000 jury verdict for emotional damages plus $260,000 for attorneys fees. Her legal team argues that First Amendment religious protections should shield her from personal liability.

But the petition goes much further. Davis claims the high court's decision in Obergefell v Hodges was "egregiously wrong" and that "the mistake must be corrected." Her attourney, Matthew Staver, calls Justice Kennedy's majority opinion in Obergefell "legal fiction."

Davis is seen as one of the only Americans currently that may have legal standing to challenge the precedent. However, legal experts remain deeply skeptical of her chances. A federal appeals court panel concluded earlier this year that the former clerk "cannot raise the First Amendment as a defense because she is being held liable for state action, which the First Amendment does not protect."

William Powell, attorney for the married couple that successfully sued Davis, expressed confidence that "the Supreme Court will likewise agree that Davis's arguments do not merit further attention."

As for Davis, she seems to selectively pick which parts of the Old Testament apply. She's been married four separate times (via Wikipedia). I'd bet she enjoys a cheeseburger too, even though the Pentateuch is just as clear on dairy and meat as it is on homosexuality (i.e., not very unless you carefully pick and choose).

A broader conservative campaign against equal rights

Davis's petition isn't happening in isolation. Conservative opponents of marriage rights for same-sex couples have renewed their campaign to reverse legal precedent and allow each state to set its own policy. In 2015, 35 states had statutory or constitutional bans on same-sex marriages. The Obergefell decision made these bans unconstitutional.

So far this year, at least nine states have either introduced legislation aimed at blocking new marriage licenses for LGBTQ people or passed resolutions urging the Supreme Court to reverse Obergefell at the earliest opportunity.

Of course major conservative religious organizations have joined the effort. The Southern Baptist Convention overwhelmingly voted in June to make "overturning of laws and court rulings, including Obergefell v. Hodges" a top priority.

Southern Baptists don't represent the majority of U.S. Christians. But their political views hold great sway in the currrent conservative movement.

Shifts in public opinion and shifts on the court

While same-sex marriage remains popular, support has shown some concerning trends. Support rose from 60% in 2015 to 70% , but it has plateaued since 2020. Among Republicans, support has fallen over, down from 55% in 2021 to 41% this year. The forces of discrimination are now emboldened.

Davis's strategy explicitly mirrors the successful challenge to Roe v. Wade. Her petition references Justice Thomas's concurring opinion in the 2022 abortion decision. Then, he explicitly called for revisiting Griswold, Lawrence, and Obergefell. He wrote justices "should reconsider all of this Court's substantive due process precedents...."

The court's composition has also shifted dramatically since 2015. It now includes three Trump appointees, giving the court a 6-justice conservative supermajority. Notably, Chief Roberts, who dissented in Obergefell, criticized the original ruling as "an act of will, not legal judgment" with "no basis in the Constitution."

Legal analysts still remain skeptical the court will take the case. As ABC News legal analyst Sarah Isgur noted, "There is no world in which the court takes the case as a straight gay marriage case."

But that is exactly what we thought about abortion. We all know in our heart of hearts this will be overturned despite what the precedent says. It may even be from the shadow docket.

The court will likely consider Davis's petition this fall. Any potential oral arguments would occur in spring 2026. For the estimated 823,000 married same-sex couples in the U.S., including 591,000 that wed after 2015, the outcome could reshape the legal landscape of marriage equality once again.

And it would re-enshrine legal discrimination nationwide. Just because we can't have nice things and they have to be assholes about everything.

Non in cautus futuri.