An upcoming appeal to the Supreme Court involving former county clerk Kim Davis, who refused to sign licenses for same-sex couples, could give the justices an opportunity to revisit the Obergefell v. Hodges ruling, according to Mat Staver, chairman of Liberty Counsel, a public interest law firm.
The firm will petition the nation’s highest court by July 27. It will ask whether Davis should be able to raise the First Amendment in her defense and whether Obergefell should be overturned, Staver told The Epoch Times.
On June 26, 2015, the Supreme Court ruled 5–4 in Obergefell v. Hodges that the 14th Amendment to the Constitution requires all states to grant licenses for same-sex marriages and recognize same-sex marriages carried out in other states.
At the same time, the court struck down the federal Defense of Marriage Act, a 1996 law that defined marriage as the union between one man and one woman, and allowed states to refuse to accept same-sex marriages recognized under other states’ laws.
Staver said he believes that Obergefell is on shakier ground than Roe v. Wade because “it invented same sex marriage out of thin air with zero precedent and zero basis in the Constitution.”
“It’s not a matter of if. It’s a matter of when. It’s going to go away,” he said.
If the precedent is overturned, states would be free to decide whether they will accept or discontinue same-sex marriage, he said.
The Kim Davis Case
Days after the Obergefell decision, on July 6, 2015, David Moore and David Ermold sought a marriage license from Davis, formerly the court clerk in Rowan County, Kentucky. She declined, saying she was acting “under God’s authority” and advised the couple to seek a marriage license in another county.
The men sued for civil rights violations, seeking damages. A federal district court issued an order in a separate case directing Davis to issue marriage licenses, the ruling said.
Not long after the Obergefell decision, Kentucky’s then-governor, Steve Beshear, directed all county clerks, including Davis, to “license and recognize the marriages of same-sex couples,” the U.S. Court of Appeals for the Sixth Circuit recounted in its March 6 ruling that upheld a civil judgment against Davis.
Davis took the position at the time that her office would not issue any marriage licenses “until the state passed legislation to grant her an accommodation,” the ruling said.
While Davis’s appeal of the court order was pending, Kentucky enacted a law allowing clerks’ names to be left off marriage licenses. Davis accepted this and asked to dismiss her appeal.
But the Sixth Circuit declined to dismiss the appeal because the plaintiffs were seeking damages.
The legal proceeding went on for years before a federal jury awarded $100,000 in total compensatory damages to Moore and Ermold.
The Sixth Circuit did not disturb the jury verdict and held that Davis was not entitled to immunity from suit as a government official, the ruling said.
Original Decision
Three Supreme Court justices who dissented in Obergefell—Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito—still serve on the high court, and four are needed to get the court to agree to hear the case.
In his dissent at the time, Roberts said policy-based arguments for allowing same-sex couples to marry may be “compelling” but that legal arguments for it aren’t.
“The fundamental right to marry does not include a right to make a state change its definition of marriage,” Roberts wrote. “And a state’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.”
He described the court majority as “five lawyers” who shut down the debate, “stealing this issue from the people.”
The Obergefell decision was codified into federal law in December 2022.
President Joe Biden signed the federal Respect for Marriage Act that month, calling it “a vital step toward equality, toward liberty and justice—not just for some, but for everyone.”
That same year, Thomas wrote that the Supreme Court should “reconsider” major “substantive due process precedents,” including Obergefell.
Substantive due process protects those personal and relational rights, as distinguished from economic rights, that are not explicitly mentioned in the Constitution’s Bill of Rights and that are deeply rooted in U.S. history and tradition, as seen in the context of evolving social norms.
“Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents,” Thomas wrote in a concurring opinion in Dobbs v. Jackson Women’s Health Organization (2022).
Dobbs, which overturned Roe v. Wade (1973), held that the Constitution does not guarantee a right to abortion and returned the regulation of the procedure to the states.
Overturning Obergefell
The five votes needed for reversal probably aren’t there on the Supreme Court, according to Steven J. Allen, a distinguished senior fellow at Capital Research Center, a think tank and watchdog group in Washington.
The chief justice cannot be counted on to overturn Obergefell, Allen told The Epoch Times.
“Roberts is a precedent guy. Roberts is a don’t-rock-the-political-boat guy,” he said.
Roberts won’t support “a massive upheaval on something that most people, even most Republicans, consider to be settled law at this point.”
Legalizing same-sex marriage through the Supreme Court gives the precedent staying power because future high court nominees will be reluctant during their confirmation hearings to come out against settled law, he said.
“You effectively eliminated any chance for any Supreme Court justice to be confirmed in the future who would not support Obergefell,” Allen said.
Michael O’Neill, vice president of legal affairs for Landmark Legal Foundation, said he doesn’t see a reversal of Obergefell happening anytime soon.
A state would have to enact a law that defines marriage as between a man and a woman and that excludes same-sex couples, he said.
Such a law would have to be challenged in court and eventually arrive at the Supreme Court, he said.
So far, nonbinding legislation urging reversal has been proposed in Idaho, Michigan, Montana, North Dakota, and South Dakota.
In January, the Idaho House passed a pro-reversal resolution by 46–24. The resolution states that Obergefell “arbitrarily and unjustly rejected” the conventional definition of marriage “in favor of a novel, flawed interpretation of key clauses within the Constitution and our nation’s legal and cultural precedents.”
Staver said fears that overturning the Obergefell precedent will undo same-sex marriages already performed are overblown because the Respect for Marriage Act would leave them intact.
This Special Report by Matthew Vadum appeared June 26, 2025, in The Epoch Times.