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Supreme court and gay marriage

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“The day will come. Moreover, even if there are four justices who might be inclined to do so, they won’t want to grant review unless they are confident that there is a fifth vote to overturn Obergefell.

Although we don’t know whether Davis has the votes, it remains possible. As a general practice, the court does not grant review without considering a case at at least two consecutive conferences.

One major criterion that they often consider is whether the lower courts are divided on the question that they are being asked to decide – a factor sometimes referred to as a “circuit split.” Davis does not argue that the courts of appeals are divided on same-sex marriage or on whether Obergefell should be overturned. “Now is not the time to let down our guard.”

Will the Supreme Court revisit its ruling on same-sex marriage?

Updated on Oct.

22 at 6:28 p.m.

In 2015, shortly after the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. But just one day after Davis’ petition was distributed to the justices’ chambers, the court directed Moore and Ermold to file a response – a process that only requires the vote of at least one justice.

Represented by (among others) William Powell and the Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection, Moore and Ermold called Davis’s case a “relatively easy” one “that does not merit” the justices’ intervention.

On Nov. 7, the Supreme Court will consider a request from that clerk, Kim Davis, to overturn their 2015 decision. Hodges, that defy God's design for marriage and family" a top priority.

Support for equal marriage rights softening

While a strong majority of Americans favor equal marriage rights, support appears to have softened in recent years, according to Gallup -- 60% of Americans supported same-sex marriages in 2015, rising to 70% support in 2025, but that level has plateaued since 2020.

Among Republicans, support has notably dipped over the past decade, down from 55% in 2021 to 41% this year, Gallup found.

Davis' petition argues the issue of marriage should be treated the same way the court handled the issue of abortion in its 2022 decision to overturn Roe v Wade.

supreme court and gay marriage

Hodges, Davis v. "Just who do we think we are?"

More: Kennedy memoir sheds light on former center of Supreme Court gay rights, abortion rulings

When the court − which now has a 6-3 conservative majority − overturned Roe v. Davis is seen as one of the only Americans currently with legal standing to bring a challenge to the precedent.

"If there ever was a case of exceptional importance," Staver wrote, "the first individual in the Republic's history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it."

Lower courts have dismissed Davis' claims and most legal experts consider her bid a long shot.

First, they wrote, she didn’t make the “current version” of her First Amendment argument until relatively late in the game – in her reply in the 6th Circuit, “filed nine years into the case. While this moratorium was in effect, Davis refused to issue a marriage license to Moore and Ermold. 13, 2025, 1:19 PM), https://www.scotusblog.com/2025/08/will-the-supreme-court-revisit-its-ruling-on-same-sex-marriage/

Supreme Court formally asked to overturn landmark same-sex marriage ruling

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."

"The mistake must be corrected," wrote Davis' attorney Mathew Staver in the petition.

She told the couple that she was acting “under God’s authority” and that they could get a marriage license in a different county.

Moore and Ermold filed a lawsuit against Davis, alleging that she had violated their constitutional right to marry. Hodges, due to her religious beliefs.

Davis asked the court to overturn the decision as she appealed the case in which she was ordered to pay compensation to a couple after she denied them a marriage license.

More: Gay marriage at the Supreme Court?

Nearly one in five of those married couples is parenting a child under 18.

Since the Obergefell decision, the makeup of the Supreme Court has shifted rightward, now including three appointees of President Donald Trump and a 6-justice conservative supermajority.

Chief Justice John Roberts, among the current members of the court who dissented in Obergefell a decade ago, sharply criticized the ruling at the time as "an act of will, not legal judgment" with "no basis in the Constitution." He also warned then that it "creates serious questions about religious liberty."

Davis invoked Roberts' words in her petition to the high court, hopeful that at least four justices will vote to accept her case and hear arguments next year.

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Lower courts allowed the suit to proceed, and the Supreme Court in 2020 declined to intervene at that stage.

Thomas wrote at the time that while Davis' case was a "stark reminder" of the consequences of Obergefell, it didn’t "cleanly present" questions about that decision.

More: Kim Davis refused same-sex marriage license in 2015.

He calls Justice Anthony Kennedy's majority opinion in Obergefell "legal fiction."

The petition appears to mark the first time since 2015 that the court has been formally asked to overturn the landmark marriage decision. If the justices deny review, however, that announcement could come as soon as Nov. 10.

Cases: Obergefell v.

Conservative Justices Thomas and Samuel Alito concurred with the decision at the time.

"This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them," Thomas wrote in a statement.

Many LGBTQ advocates say they are apprehensive about the shifting legal and political landscape around marriage rights.

There are an estimated 823,000 married same-sex couples in the U.S., including 591,000 that wed after the Supreme Court decision in June 2015, according to the Williams Institute at UCLA Law School.

Justices weigh revisiting landmark issue

Her appeal led to speculation about whether the court – which has become more conservative since it narrowly struck down same-sex marriage bans – would take another look at it.

"Today, five lawyers have ordered every state to change their definition of marriage," Chief Justice John Roberts wrote in his 2015 dissent.

The court of appeals acknowledged that in Obergefell the Supreme Court observed that “many people ‘deem same-sex marriage to be wrong’ based on ‘religious or philosophical premises.’” “But those opposed to same-sex marriage,” the court of appeals wrote, “do not have a right to transform their ‘personal opposition’ into ‘enacted law and public policy.’” “The Bill of Rights,” the court stated, “would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates.”

Davis came to the Supreme Court on July 24, asking the justices to review the 6th Circuit’s decision.

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."

Davis, as the Rowan County Clerk in 2015, was the sole authority tasked with issuing marriage licenses on behalf of the government under state law.

"Not a single judge on the U.S.

Court of Appeals showed any interest in Davis's rehearing petition, and we are confident the Supreme Court will likewise agree that Davis's arguments do not merit further attention," said William Powell, attorney for David Ermold and David Moore, the now-married Kentucky couple that sued Davis for damages, in a statement to ABC News.

A renewed campaign to reverse legal precedent

Davis' appeal to the Supreme Court comes as conservative opponents of marriage rights for same-sex couples pursue a renewed campaign to reverse legal precedent and allow each state to set its own policy.

At the time Obergefell was decided in 2015, 35 states had statutory or constitutional bans on same-sex marriages, according to the National Conference of State Legislatures.