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It’s been 10 years since the U.S. Supreme Court handed down its landmark decision legalizing same-sex marriage.
Now a former Kentucky county clerk famous for refusing to issue marriage licenses to same-sex couples, due to her religious beliefs, is asking the high court to overturn Obergefell v. Hodges.
The court is expected to decide in the coming weeks on whether to hear the clerk’s case.
Indiana attorneys hold mixed views on whether the Supreme Court will agree to review the ruling, but at least one lawyer said he believes it’s possible the case will be heard this fall.
Travis Van Winkle, an attorney with Van Winkle Legal in Indianapolis, said that, given the current political climate, he thinks there’s a good chance the court will hear Kim Davis’ appeal.
“I’ve seen this court do things I didn’t think I’d see in my lifetime,” Van Winkle said.
Since the Obergfell decision, the makeup of the Supreme Court has shifted more to the right, with a conservative supermajority that now includes three appointees of President Donald Trump.
Davis, a former Kentucky county clerk who refused to issue marriage licenses, filed an appeal with the court on July 24 regarding the compensation she was ordered to pay to a gay couple she denied a license.
In a petition for writ of certiorari, Davis’ attorneys argued her First Amendment protection for free exercise of religion protected her from personal liability for the denial of marriage licenses.
They also called for Obergefell to be overturned, arguing The Respect for Marriage Act, passed by Congress and signed into law by former President Joe Biden in 2022, would protect marriage licenses already in effect.
“Overturning Obergefell will simply send the matter of marriage back to the States where it belongs, and remove it from the federal Constitution where it does not,” the petition stated.
Ken Falk, ACLU of Indiana’s legal director, said he thinks it’s unlikely the Supreme Court will hear Davis’ case.
In 2014, Falk argued in front of the 7th Circuit Court of Appeals that Indiana’s law at the time defining marriage as only between one man and one woman was unconstitutional.
Falk said Davis was a public official not complying with the law when she refused to issue marriage licenses to same sex couples.
He said he found her First Amendment argument “odd.”
“We expect public officials to follow the law,” Falk said.
Falk said he hoped that, given how much time has gone by since the Supreme Court ruled same sex marriage is legal, that the court would take that into consideration.
“Same-sex marriage seems pretty ingrained in the United States,” Falk said.
Same-sex marriage history
The Indiana Legislature passed a law in 1986 banning same-sex marriages and updated state statutes in 1997 to add that the state will not recognize marriages between same-sex couples, even those legally performed in other jurisdictions.
In 2014, U.S. District Judge Richard Young ruled that Indiana’s law banning marriage for same-sex couples, as well as its ban on recognition of marriages between same-sex couples performed outside of the state, was unconstitutional.
Young’s ruling covered Baskin vs. Bogan, Fujii v. Governor, and Lee v. Pence.
The 7th Circuit Court of Appeals upheld Young’s ruling, as well as a ruling in a similar Wisconsin case.
“Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended – is so full of holes that it cannot be taken seriously,” Judge Richard Posner wrote in the 40-page opinion.
William Groth, an attorney with Bowman & Vlink, LLC, said the statistical odds are not in favor of the Supreme Court accepting Davis’ case.
Groth said about 2% of certiorari petitions are granted by the high court.
He said Davis is also trying to overturn the precedent Obergefell set a decade ago, something that provides another obstacle to the court granting her petition.
“The Supreme Court and most people like the certainty that Supreme Court rulings provide,” Groth said, adding that he thinks the underlying merits of Davis’ argument are weak.
Groth said the lower courts have had no difficulty so far ruling against Davis in her appeals.
What happens if the Supreme Court does hear the case?
Groth noted, however, that it only takes four out of the nine Supreme Court justices to agree to hear a case.
When the Supreme Court overturned Roe v. Wade in 2022, Justice Clarence Thomas wrote a concurring opinion where he argued that the justices “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” with the last opinion referring to the court’s historic 2015 ruling that legalized same sex marriage on the federal level.
Davis’ attorneys referenced some of Thomas and Justice Samuel Alito’s objections to Obergefell in the July petition.
Other justices have also made public statements about same-sex marriage
In a recent interview with CBS News to promote her new book, Justice Amy Coney Barrett said the Supreme Court “should not be imposing its own values on the American people.”
Barrett wrote in her book “the court has held that the rights to marry, engage in sexual intimacy, use birth control, and raise children are fundamental, but the rights to do business, commit suicide, and obtain abortion are not,” according to CBS.
Davis’ petition argued that overturning Obergefell would not undo any marriage licenses already in effect.
“All marriage licenses, including those between same-sex couples, would continue to be recognized,” the petition stated. “They would be ‘grandfathered.’ Going forward, marriage would return to the states as it was prior to Obergefell. It would be up to each state to define marriage.”
Van Winkle said if the Supreme Court does hear the case and were to overturn Obergefell, the question of same-sex marriage would return to the states.
He noted Thomas and Alito’s well-known opposition to the court’s 2015 decision.
“My worry is they will try to use this as a way to right a wrong as they see it,” Van Winkle said.
Van Winkle said Davis’ appeal to the Sixth Circuit Court of Appeals did not involve the constitutionality of same-sex marriage but was centered around her argument that she was immune from paying damages under the First Amendment due to her employment by the State of Kentucky.
The Indianapolis attorney said the Supreme Court could just decide that issue and not tackle the broader issue of same-sex marriage.
He acknowledged that his phone has been ringing off the hook ever since the 2024 presidential election, with questions from same-sex couples about what it could mean for their families.
Van Winkle said he tells clients that they have legitimate concerns but stresses that if the Supreme Court were to overturn Obergefell, same-sex marriage would still be legal in Indiana unless the state legislature decided to outlaw it..
Groth said a question for him, if the court were to overturn Obergefell, is what that would actually mean for same-sex marriages that were entered into after the 2015 decision.
“It would just create total chaos, it would seem to me,” Groth said.•
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