For the first time since President Donald Trump took office, the Supreme Court has been given the option to re-examine same-sex marriage. After ten years of battle in lower courts, the appeal for the case Davis v. Ermold asks the court to overturn the constitutional right to same-sex marriage and the over 60 years of legal backing that supports it. If successful, marital rights for same-sex couples would be stripped in the state of Texas.
In 2015, the Supreme Court recognized same-sex marriage as constitutional in Obergefell v. Hodges. In that case, the court found that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, [same-sex couples] may not be deprived of that right and that liberty.”
Immediately after the ruling, Kentucky’s Governor issued a mandate to recognize and distribute marriage licenses for same-sex couples. In response, a county clerk in the state, Kim Davis, refused to sign off on all new marriage licenses, saying, “If [going to jail is] what it takes for me to express the freedom of religion that I believe I was born with, then I’m willing to do that.”
She was subsequently sued in multiple lawsuits. Since her refusal, she has seen jail time, a jury verdict for $100,000 and $260,000 in attorney fees, all of which she is seeking relief from in her appeal to the Supreme Court.
In addition to being relieved of her payments, the appeal asks the Supreme Court to overturn the right to same-sex marriage for several reasons. The most prominent claim asserts that the right’s legal backing, called “substantive due process,” is “legal fiction.”
Substantive due process “is the principle that the Fifth and Fourteenth Amendments of the U.S. Constitution protect fundamental rights from government interference,” according to the Cornell Law School Legal Institute. Other rights that hang on substantive due process include the rights to interracial marriage, privacy, contraceptives and parental choice for raising a child.
The appeal specifically argues that the right to same-sex marriage should be returned to the states, similar to when abortion rights were overturned in 2022. However, the Respect for Marriage Act requires states to recognize all marriage licenses from other states.
Therefore, if the appeal becomes successful, every state would have to acknowledge marriages from other states, but could not revoke existing ones. Individual states could then choose not to issue new marriage licenses to same-sex couples.
Despite the ruling in Obergefell, it remains codified in Texas law that members of the same sex cannot marry, meaning that the ban would take effect automatically. No additional law would be necessary. New same-sex couples across Texas would be forced to get a license and marry out of state.
The court has not stated how it would rule or if it will hear the case; however, most judges have already indicated their stance. Three justices on the current court, John Roberts, Samuel Alito and Clarence Thomas, filed dissenting opinions in Obergefell, believing the court initially ruled the wrong way. Further, Thomas stated in a separate case his desire to “reconsider all of [the] Court’s substantive due process precedents,” including Obergefell.
Two new Justices, Brett Kavanaugh and Amy Coney Barrett, have, up until now, not heard a case that directly questions same-sex marriage’s constitutionality, meaning their opinion has yet to be formally decided. However, Barrett said in her recently published book that “the rights to marry, engage in sexual intimacy, use birth control and raise children are fundamental.” Additionally, Kavanaugh has previously held that overruling abortion rights does not threaten or cast doubt on Obergefell.
More recently, in the case 303 Creative LLC v Elenis, which featured all of the current justices, the court ruled that businesses could refuse service to same-sex couples. Like today’s case, Elenis rests on an individual’s religious freedom to refuse to endorse relationships they do not believe in through their business. The dissenting justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson stated, “Lesbian, gay, bisexual, and transgender people, no less than anyone else, deserve” protections from discrimination.
It will likely take months, if not years, for Davis v. Ermold to be heard by the court. Readers can stay up to date at paisano-online.com.
