Kim Davis is pressing the Supreme Court to overturn its 2015 ruling in Obergefell v. Hodges that recognized same-sex marriage rights. In support of her long-shot, likely doomed effort, the former Kentucky county clerk — who famously refused to issue a marriage license to a gay couple in 2015 after Obergefell was decided — leans heavily on the words of Justice Clarence Thomas.
Davis cited Thomas several times in her final reply brief to the justices Wednesday, the last court filing before they consider whether to grant review of her petition. It takes four justices to grant review.
Thomas’ appearance is unsurprising because he has questioned same-sex marriage rights, including in a previous round of litigation in Davis’ case.
Among the words of his that she cites is a statement he issued in 2020, joined by Justice Samuel Alito, in connection with the court’s denial of a prior petition in her case. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” Thomas wrote of Obergefell.
More unusual is Davis’ reference to Justice Amy Coney Barrett’s new book, which the Trump appointee has been promoting. Davis quoted Barrett as writing that “stare decisis is only a presumption; the Court can and does fix mistakes.” (Stare decisis is a term used in the law to signal adherence to precedent.)
Barrett wasn’t on the high court in 2015 when Obergefell was decided 5-4. Justice Anthony Kennedy (since replaced by Justice Brett Kavanaugh) wrote the majority opinion, joined by Justices Ruth Bader Ginsburg (replaced by Barrett), Stephen Breyer (replaced by Justice Ketanji Brown Jackson), Sonia Sotomayor and Elena Kagan. Dissenting were Thomas, Alito, Chief Justice John Roberts and Justice Antonin Scalia (replaced by Justice Neil Gorsuch).
Davis’ petition seeks to upend a ruling from the U.S. Court of Appeals for the 6th Circuit, which affirmed her loss in a civil case brought by David Moore and David Ermold, the couple whose license she refused. Opposing Supreme Court review, Moore and Ermold write that Obergefell “was correctly decided, and there is no need to revisit it.” Now that the briefing is complete with Davis’ reply filed, the justices will consider her petition at their private conference on Nov. 7. We may learn the court’s decision soon after the conference, although the justices aren’t on a deadline to rule. While anything could happen, it doesn’t seem that a majority of the court is interested in overturning that precedent. It might be more a question of whether there are any dissents or separate statements issued in connection with the denial of this latest petition, and if so, how many justices on the current court sign on. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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