The U.S. Supreme Court will meet early next month to determine whether to take up a challenge to the 10-year precedent of marriage equality.
Last week, the Court indicated that it would hold a private conference on November 7 to confer on a legal challenge to Obergefell v. Hodges, the 2015 case in which the Court ruled in favor of recognizing same-sex marriage across the country. The challenge comes from Kim Davis, a former Kentucky county clerk who made national headlines shortly after that case over her refusal to issue licenses to same-sex couples on the basis that it violated her religious beliefs.
The advancement of Davis’s petition is worrying, as Obergefell was a 5-4 decision. Two justices involved in the ruling — the retired Anthony Kennedy and the late Ruth Bader Ginsburg — have since been replaced by far right Justices Brett Kavanaugh and Amy Coney Barrett.
Following news that the conference had been scheduled, Davis’s lawyer, Matthew Staver, expressed confidence that Obergefell would be overturned, claiming the decision “has no basis in the Constitution.”
The Supreme Court’s opinion in Obergefell recognized multiple judicial precedents regarding the role of marriage in society. The justices also found that same-sex couples were being unfairly discriminated against, on the basis of the 14th Amendment’s Due Process clause.
Davis is particularly interested in how Barrett may rule, as her petition includes an excerpt of the now-justice’s previously published book, in which she wrote, “stare decisis is only a presumption.” Barrett also wrote in her book that the court has, in the past, fixed what she described as “mistakes.” Davis’s petition includes words from Justices Clarence Thomas and Samuel Alito, who have frequently alluded to wanting to upend Obergefell.
Davis lost an appeal to the Sixth Circuit Court earlier this year, which affirmed that she owed $50,000 in punitive damages to a same-sex couple she had refused to grant a license to.
“Those opposed to same-sex marriage do not have a right to transform their ‘personal opposition’ into ‘enacted law and public policy,'” a ruling from that court stated.
Davis filed her petition to the Supreme Court shortly after that ruling.
A conference does not indicate whether or not a case will be heard. Cases can be brought to conference with a single justice asking them to be considered — but at least four justices must agree to advance a writ of certiorari for a case to be heard later on.
Generally, an announcement on whether a case will be heard is made on the Monday following a conference. That means the decision to either advance or deny the challenge by Davis will likely be announced on November 13.
Despite changes to the Supreme Court’s ideological makeup since Obergefell, some legal experts do not believe the precedent will be challenged — for now — based on Davis’s religious grounds arguments.
Karen Loewy, Lambda Legal’s interim legal director of litigation, noted that the High Court rejected a similar challenge from Davis five years ago, and that such a challenge would be unlikely to prevail now.
“Even [in 2020], Justice Alito, who we all know would love nothing more than to reverse Obergefell, was like, ‘This is not a vehicle for that,'” Loewy explained to The 19th.
“It is highly unlikely they will want to touch her case for lots of reasons. The vast majority of cases brought to the Supreme Court are long shots,” constitutional law professor Ezra Ishmael Young said.
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