US Supreme Court sets date to review case that could undo same-sex marriage rights

The US Supreme Court will meet privately on 7 November to consider whether to review a case that could challenge nationwide same-sex marriage rights.

The petition was filed by Kim Davis, the former Kentucky county clerk who refused in 2015 to issue marriage licences to same-sex couples. Davis is asking the court not only to overturn her personal legal defeats but also to strike down Obergefell v. Hodges, the 2015 ruling that legalised same-sex marriage across the country.

Davis first gained national attention in 2015 when she cited religious objections for refusing to process marriage licences. A federal judge found her in contempt, and she spent six days in jail. Her legal arguments have been rejected repeatedly in lower courts.

“Obergefell has no basis in the Constitution” – Kim Davis’s attorney, Matthew Staver

Earlier this year, the Sixth Circuit Court of Appeals dismissed her First Amendment claim, noting she “was held liable for state action” and not for private conduct. The court ruled that the Free Exercise Clause did not shield her from liability. Following that, a jury ordered her to pay $50,000 each to David Moore and David Ermold, the couple she denied a licence.

Davis’ current petition argues she should not face personal liability and contends Obergefell lacks a constitutional basis. Matthew Staver, her attorney, told Newsweek: “Obergefell has no basis in the Constitution.”

He added that the decision “could be overruled without affecting any other cases” and called it “on an island of its own creation.” The petition also claims the ruling makes it harder for people like Davis “to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws”, and that overturning it would protect religious liberty.

Public support for same-sex marriage remains strong

Some conservative justices have previously questioned Obergefell. Justice Clarence Thomas has suggested the court should revisit cases that expanded rights beyond the framers’ intent, and he and Justice Samuel Alito have raised concerns about religious liberty, although Alito clarified earlier this month: “In commenting on Obergefell, I am not suggesting that the decision in that case should be overruled.”

Other justices appear less inclined to reopen the issue. Justice Amy Coney Barrett has emphasised that marriage equality now carries “very concrete reliance interest” and described the “rights to marry” as “fundamental” in her book Listening to the Law: Reflections on the Court and Constitution.

Public support for same-sex marriage remains strong. A Gallup poll in May 2024 found 69 percent of Americans back marriage equality, and 64 percent consider same-sex relationships morally acceptable.

The Supreme Court is expected to announce shortly after 7 November whether it will take the case. If it declines, lower court rulings will stand. If it accepts, oral arguments could take place next spring, with a ruling possible by June.