Turns out Kim Davis’s 15 minutes of fame aren’t over yet.
You probably thought the Kentucky clerk who refused to follow the law and wouldn’t provide same-sex couples with marriage licenses in the wake of the landmark marriage equality case Obergefell v. Hodges, was, like skinny jeans and side parts, a sign of a bygone era. But now that flouting the law until it bends to your preferred religious proclivities is all the rage, Davis is back.
Davis is appealing an order directing her to pay a same-sex couple $100,000 in compensation (plus attorneys fees) for denying them a marriage license. In the appeal, Davis asks the Supreme Court to overturn the Obergefell case, and even the ask is deeply concerning. Because if you’ve been paying attention, you know the Supreme Court is gunning for Obergefell.
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And it’s not just the doom-vibes of 2025 that has me predicting yet another roll back of rights. There’s plenty of written evidence that demonstrated a majority of the Court is ready to end marriage equality.
It all started with Samuel Alito’s unhinged dissent in Obergefell, and he still can’t let it go. In 2020, in a denial of cert in another case involving Davis, Alito and Thomas railed against Obergefell and its “ruinous consequences for religious liberty.” Then there was Alito’s *majority* opinion overturning established precedent guaranteeing the right to reproductive freedom in Dobbs, which creates parallels between the right established in Obergefell and reproductive freedom, as they’re not “deeply rooted in history.” And, of course, the concurrence in that case written by Clarence Thomas explicitly says the Court should “reconsider” its jurisprudence on marriage equality (as well as the Court’s holdings on consensual sexual contact and contraception, so there’s more horror to look forward to).
Of course, not everyone sees the downfall of marriage equality in the tea leaves. Axios has a panel of experts, like Mary Bonauto, attorney to Jim Obergefell, who are more optimistic. Bonauto said, “There’s good reason for the Supreme Court to deny review in this case rather than unsettle something so positive for couples, children, families and the larger society as marriage equality.”
Oh, my dear sweet summer child. No matter how much you and I (and 69% of Americans) see marriage equality as a societal good, Alito very much sees it differently. The current Court is disturbingly down with shredding precedent and issuing decisions wildly out of line with what the majority of Americans believe as long as it fits *their* vision of what the country should be. So, yeah. It’s time to start prepping for a regression.
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California and Hawaii are already ensuring zombie laws that predate Obergefell don’t come back from the dead. And estate lawyers are available to protect couples’ relationships with contracts. Because the time to worry is now.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].