The Sudden Panic That SCOTUS Might Overturn Marriage Equality Misses the Real Threat

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Over the past few days, a long-shot request for the Supreme Court to overturn marriage equality has snowballed into a major news story. Influential media outlets have covered it closely, and prominent politicians have seized upon it to warn that same-sex marriage is still under attack. It is certainly true that no one should take this hard-won right for granted. But any panic about this particular challenge—brought by former Kentucky clerk Kim Davis—is unwarranted. There is essentially no chance that the court will entertain Davis’ plea to abolish gay people’s constitutional right to marry; the odds round down to zero. And although apprehension about the justices’ hostility toward LGBTQ+ equality is justified, marriage does not yet appear to be in their crosshairs.

The most important thing to understand about Davis’ appeal is that it has a small likelihood of being taken up in the first place. Her lawyers have merely asked the court to consider it, filing what’s known as a petition for certiorari. (They did so in July, and it’s unclear why the request is garnering so much attention now.) SCOTUS receives about 8,000 of these petitions every year and grants just a tiny number of them—in recent years, fewer than 70. Anyone can ask the court to hear their appeal. And while it is technically accurate to say that the justices will consider her request, that does not mean they will resolve it on the merits. It simply indicates that they will have the opportunity to take it up, an opportunity that they are unlikely to accept.

Why? Most obviously, Davis’ petition does not center on the question of marriage equality. It stems from a long-running battle over her refusal to grant a marriage license to a same-sex couple shortly after the Supreme Court affirmed their right to wed in 2015’s Obergefell v. Hodges. Davis, then a county clerk in Kentucky, claimed that her antigay religious beliefs did not allow her to provide the license. A federal judge briefly jailed her for contempt of court, and the couple later sued her for violating their rights. The two men prevailed at trial, and a jury awarded them $100,000 in damages. It is this judgment that Davis now asks the high court to overturn: She argues that she should’ve been allowed to raise the First Amendment’s free exercise clause as a defense against the couple’s lawsuit.

Davis’ lawyers devote almost all of their petition to this topic. Only at the end do they tack on a request—almost an afterthought—for the Supreme Court to overturn Obergefell altogether. But, again, the actual legal question in the case is not whether Obergefell was rightly decided; it is whether state officials can wield religious liberty as a shield when they engage in unlawful discrimination.

The answer to this question is plainly no. Two conservative judges appointed by Donald Trump have already explained that a state official cannot hide behind the First Amendment to justify discrimination when acting as an agent of the government. It is highly doubtful that the court will reconsider that conclusion, which rests on the fundamental principle that the government has no right to infringe on people’s rights.

SCOTUS can take up Davis’ appeal only if four of the justices vote to hear it. And it’s difficult to envision four members of the current court agreeing to do so given the open-and-shut failure of Davis’ main argument. But even if they did, the court would still have no grounds to consider her shoehorned assault on Obergefell itself. Reevaluating that precedent is entirely unnecessary to resolve the real dispute. And as the appeals court pointed out, Davis’ lawyers actually forfeited their argument against Obergefell by declining to raise it in the district court. Their failure to preserve this issue gives SCOTUS one more reason to ignore it.

So even if this Supreme Court were eager to put marriage equality in its crosshairs, Davis’ appeal would be a terrible vehicle for it. But the court doesn’t seem to have much of an appetite to kill off Obergefell right now. That assurance may ring hollow in light of Roe v. Wade’s demise just three years ago. A handful of clues from the conservative supermajority, however, indicate that there are not currently five votes to end marriage equality. Or, perhaps more accurately, there are not five justices who want to eradicate same-sex couples’ fundamental right to wed.

At least three members of this supermajority have dropped hints that they do not wish to revisit Obergefell. Just two years after the decision, Chief Justice John Roberts seems to have quietly joined a follow-up ruling affirming its protections for same-sex parents, suggesting that he had made his peace with marriage equality. Justice Brett Kavanaugh has called same-sex marriage a “very important right” and declared that gay Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” In his most important opinion about precedent, Justice Neil Gorsuch went out of his way to signal that Americans have “reliance interests” on their ability to marry. Roberts and Gorsuch, of course, also voted to protect gay employees from workplace discrimination in 2020’s Bostock v. Clayton County. And while Kavanaugh dissented from that decision, he did so apologetically, offering a sentimental tribute to gay Americans’ “extraordinary vision, tenacity, and grit.” The justice also took pains to note that the death of Roe v. Wade “does not threaten or cast doubt on” marriage equality.

The point here is not that these three justices think Obergefell was correct; they almost certainly don’t. But it seems safe to conclude that they are not preoccupied by an unrelenting desire to harm gay people—or that they, at a minimum, understand that overturning Obergefell would be massively unpopular. Like every justice, this trio has an agenda. They know that their court has limited time, resources, and political capital to effectuate it. So they have to prioritize. And overturning marriage equality does not appear to be anywhere close to a top priority. Savvier anti-LGBTQ+ groups, like Alliance Defending Freedom, recognize this fact. It’s presumably why these organizations have not directly asked SCOTUS to reverse Obergefell. (Davis is represented by the far smaller and less prestigious Liberty Counsel.)

That’s not to say that gay rights are safe at this Supreme Court. Far from it: They are under active attack, albeit in a subtler way. In the past several years, the conservative supermajority has weaponized the First Amendment to legalize discrimination against same-sex couples in the marketplace. It has forced public schools to censor LGBTQ+ books and compelled states to fund private schools that discriminate against LGBTQ+ students. Next year, it will probably strike down state bans on LGBTQ+ “conversion therapy” for minors. Rather than take aim at Obergefell itself, the Republican-appointed justices have settled on curtailing gay rights in the name of religious liberty and free speech. They have also blessed overt discrimination against transgender people, cruelly denying them equal protection under the law. These rulings merit far more attention and scorn than a long-shot bid to take down marriage equality.

Obergefell is not Roe v. Wade. It did not unite the Republican Party in a tireless crusade to change the law. Indeed, Trump has expressed no interest in ending marriage equality, even as his administration has enacted other anti-LGBTQ+ policies. A couple of sitting justices would likely leap at the opportunity to cast Obergefell into the dustbin of history. But it is pretty clear that they haven’t yet secured a majority for their mission. And in the unlikely event that they do, Kim Davis’ case will not be the vehicle they use to eradicate the equal dignity of same-sex couples.

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