The U.S. Supreme Court will meet in private on Friday to consider whether to take up a petition seeking to overturn Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage nationwide. The appeal, brought by former Kentucky county clerk Kim Davis, has revived concern among LGBTQ advocates despite repeated indications from the justices that they are unlikely to revisit the landmark ruling.
Davis, who was briefly jailed in 2015 after refusing to issue marriage licenses to same-sex couples, argues that the court should “correct course” and overturn Obergefell. Her petition is one of dozens being reviewed in the justices’ closed-door conference. The court could announce as soon as Monday whether it will hear the case.
“I am very concerned,” James Obergefell, the lead plaintiff in the original case, told CNN. “At this point I do not trust the Supreme Court.”
The current bench is markedly more conservative than the one that decided Obergefell. Justice Anthony Kennedy, who authored the opinion, retired in 2018, replaced by Justice Brett Kavanaugh. Justice Ruth Bader Ginsburg’s 2020 death led to the appointment of Justice Amy Coney Barrett.
Still, several justices have signaled reluctance to reopen the issue. Justice Samuel Alito, a dissenter in Obergefell, recently criticized the ruling’s legal reasoning but emphasized that he was not advocating its reversal, calling it “a precedent of the court that is entitled to the respect afforded by stare decisis.” Barrett has also referenced the “very concrete reliance interests” built around the decision, citing the hundreds of thousands of couples who have since married.
Davis’s appeal technically centers on a narrower issue whether she is shielded from liability under the First Amendment’s religious protections after being found personally responsible for damages to couples she refused to serve. The Sixth Circuit Court of Appeals rejected her argument.
It takes four justices to grant review, but five to form a majority. Even if the justices decline to revisit Obergefell now, legal experts warn that the Davis case may represent the first step in a broader campaign to challenge same-sex marriage rights, echoing the strategy that led to the reversal of Roe v. Wade.
Public opinion, however, has shifted sharply since 2015. Roughly 70% of Americans now support same-sex marriage, and Congress codified federal protections for such unions in 2022 with bipartisan backing.
Mary Bonauto, who argued Obergefell before the Court a decade ago, said vigilance remains essential: “You can never really rest on your laurels because other forces just don’t give up.”
