Why the Supreme Court May Never Review Gay Marriage

The Supreme Court declined Monday to hear a former Kentucky county clerk’s case that could have potentially challenged the 2015 decision Obergefell v. Hodges, which nationalized same-sex marriage.

“This was completely predictable,” Thomas Jipping, a senior legal fellow at The Heritage Foundation, told The Daily Signal. “It was not the right case to raise the issue of the constitutionality of gay marriage.”

Kim Davis, the former Rowan County clerk, had refused to issue a marriage license to a same-sex couple. The couple sued, and a lower court ruled against Davis, awarding the couple $100,000 in emotional damages and another $260,000 in attorney’s fees.

Davis asked the Supreme Court to consider her case in August. She claimed the lower court ruling violated her right to the free exercise of religion as protected by the First Amendment. The First Amendment protects her from personal liability for the denial of marriage licenses, she argued.

Davis’ petition also condemned the Obergefell decision as a “legal fiction.”

The Supreme Court did not explain its decision not to consider her case.

Davis gained national attention in 2015 after she was jailed for six days for refusing to sign off on a marriage license for a gay couple. 

Jipping, the Heritage scholar, told The Daily Signal that it is unlikely a case would come forward to challenge same-sex marriage.

If such a case arose, it would do so at the state level, similar to the Dobbs v. Jackson Women’s Health Organization (2022) case that overturned the Roe v. Wade abortion decision. 

“No state is trying to ban gay marriage, and there has been a significant shift in public opinion on the issue,” Jipping explained.

Further, in 2022, Congress passed and President Joe Biden signed the Respect for Marriage Act, which largely codified Obergefell.