{"id":157,"date":"2026-06-08T14:41:06","date_gmt":"2026-06-08T14:41:06","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=157"},"modified":"2026-06-08T14:41:06","modified_gmt":"2026-06-08T14:41:06","slug":"the-campaign-to-overrule-obergefell","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=157","title":{"rendered":"The campaign to overrule Obergefell"},"content":{"rendered":"
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Supporters of same-sex marriage breathed a sigh of relief when the Roberts court denied review last year in Davis v. Ermold<\/em>, a case in which a county clerk in Kentucky, Kimberly Jean Davis, challenged Obergefell v. Hodges<\/em>, the court\u2019s 2015 decision recognizing a constitutional right to same-sex marriage. Davis\u2019 hope was that a \u201creligious conscience\u201d challenge to the issuance of same-sex marriage licenses might prevail. That hope was bolstered when Justice Anthony Kennedy stepped down in 2018 and was replaced by Justice Brett Kavanaugh \u2013 all of this while Davis\u2019 case was working its way through the federal district and appellate courts. Perhaps, Davis thought, a more conservative court would revisit its landmark 5-4 ruling. But it was not to be; Obergefell<\/em> was safe.\u00a0<\/p>\n

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As we come upon its anniversary, I\u2019d like to use my first recurring column to explore the status of that landmark case, and the challenges I believe it may continue to face.<\/p>\n

The futile petition<\/strong>\u00a0<\/p>\n

It\u2019s an old maxim: \u201cHard cases make for bad law.\u201d With Davis<\/em>, the maxim might well be: \u201cBad cases make for no<\/em> law.\u201d And, regardless of where one stands on the underlying issues, Davis\u2019 case was a very bad one.<\/p>\n

By way of background, Kim Davis was the county clerk for Rowan County, Kentucky. In 2015, shortly after Obergefell<\/em> was decided, Davis made headlines when she refused to issue marriage licenses to gay couples. When she was asked \u201c[u]nder whose authority\u201d she denied these licenses, Davis replied, \u201cunder God\u2019s authority.\u201d On that basis, she defied a federal court order to issue marriage licenses to such couples, six of whom sued. In 2023, a jury ordered Davis to pay $100,000 in damages to one couple, David Ermold and David Moore; a federal district court judge later added $260,000 in attorneys\u2019 fees and expenses.<\/p>\n

When the matter came before the U.S. Court of Appeals for the 6th Circuit, a glaring problem emerged \u2013 Davis sought review of a claim she had previously conceded she had failed to raise below \u2013 and it was a big one. As that court duly noted: \u201cIronically, . . . it appears that Davis did not preserve [the] issue [of overruling Obergefell<\/em>] because she never raised it below. She did not argue that Obergefell<\/em> should be overturned in her motion to dismiss, her motion for summary judgment, or her motion for judgment as a matter of law. Indeed, in moving to dismiss, Davis expressly stated that she did not \u2018want to relitigate the Supreme Court\u2019s decision in Obergefell<\/em>.\u2019\u201d<\/p>\n

Another problem for Davis: The 6th Circuit held that she did not have either \u201cqualified immunity\u201d as a public employee or any colorable First Amendment \u201cfree exercise of conscience\u201d claims.\u00a0For one thing, as that court stressed: \u201cThe First Amendment protects \u2018private conduct,\u2019 not \u2018state action.\u2019\u201d Yet, it was that very state action in which she engaged (denying marriage licenses) that Davis claimed was protected by the First Amendment.<\/p>\n

Given this, it was no surprise that \u2013 10 years after her case began \u2013 the Supreme Court declined to grant Davis\u2019 petition, with no justice dissenting from that denial.<\/p>\n

Beyond its bad facts and weak legal arguments, Davis<\/em> was also a lone-wolf case with no significant institutional backing. Indeed, unlike Obergefell<\/em>, in which numerous briefs opposed same-sex marriage, only (the National Organization for Marriage and the Claremont Institute) supported her petition.\u00a0<\/p>\n

The new and improved anti-Obergefell<\/em><\/strong>\u00a0campaigns<\/strong><\/p>\n

Forget Davis.<\/em> What if a future case with \u201cgood\u201d facts, no procedural hurdles, and a new legal argument came before the court? What then? And what if that case were the end product of a well-orchestrated campaign analogous to that waged in Dobbs v. Jackson Women’s Health Organization<\/em> to overrule Roe v. Wade<\/em>?<\/p>\n

As an initial matter, according to a recent Gallup poll, support for same-sex marriage fell from a high of 71% in 2022 and 2023 to 65% today. This has primarily been a result of falling public opinion among Republicans, a majority of whom supported same-sex marriage in 2021 and 2022 (at 55%), but now only 37% of whom do.\u00a0<\/p>\n

Perhaps sensing such potential momentum, various organizations have taken aim at Obergefell<\/em> \u2013 and the pace has accelerated. For example, last year, the Southern Baptist Convention voted\u00a0overwhelmingly to urge the Supreme Court to overturn the right to same-sex marriage. As noted by New York Times reporter Ruth Graham: \u201cThe nation\u2019s largest Protestant denomination was motivated,\u201d in particular, \u201cby conservative Christians\u2019 success in reversing Roe v. Wade<\/em>.\u201d The Liberty Counsel, a public policy ministry that includes an association of churches, has also expressed that \u201cThe High Court [should seize] the opportunity to finally overturn this egregious opinion from 2015.\u201d<\/p>\n

MassResistance, a grassroots activist group, has focused specifically on state lawmakers, encouraging them to issue resolutions calling on the high court to overrule Obergefell<\/em>. According to Heather Scott (an Idaho Republican state representative), \u201cWe need to continue to put pressure on [the court] to override [Obergefell<\/em>]. Our [state] Constitution is very clear: we only recognize marriage between a man and a woman.\u201d This has had tangible effects: lawmakers in Idaho, \u00a0Montana, Oklahoma, , and South Dakota have introduced a variety of such resolutions.<\/p>\n

Many anti-Obergefell<\/em> organizations have adopted a new legal strategy: protecting children<\/em>. The Greater Than \u201cprotect children\u201d campaign, for example, is a coalition of 47 conservative organizations dedicated to stopping same-sex marriage. According to them: \u201cChildren are greater than equal. And it\u2019s time we fought for their rights.\u201d Although the contours of this legal theory are not entirely clear, it seems to go something like this: Imagine a state that passed a law that prohibited same-sex couples from adopting children. The aim is to alter the constitutional balance between children\u2019s rights and gay rights, arguing that children\u2019s \u201cneed\u201d for male and female parents should take priority over the rights of same-sex couples. Earlier this year, Katy Faust, president and founder of Them Before Us, echoed this theme at the National Conservatism Conference. The title of her remarks was \u201cHow Obergefell <\/em>Commodified Children.\u201d According to a recent Seattle Times story, \u201cFaust argued the way to reignite a seemingly settled cultural debate over same-sex marriage is to reframe it \u2014 away from the rights of adults and toward children she claims are \u2018the real victims.\u2019\u201d<\/p>\n

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The influential Heritage Foundation, which spearheaded \u201c,\u201d has also promoted this narrative. It has launched its \u201cPut Family First\u201d initiative, which contends that \u201c[e]very child conceived deserves to be born to a married mother and father who will love, guide, and protect them throughout their lives.\u201d Under the initiative, Heritage commits to \u201cadvance policies at the state and federal level to restore the nuclear family to the center of American life\u201d \u201cwith courage and compassion.\u201d<\/p>\n

This campaign also has some financial backing. For example, the founder of Hobby Lobby is reported to have funded Them Before Us.<\/p>\n

Finally, what position might the federal government take? Although President Donald Trump\u2019s views on the matter have been fluid, we likely know where Solicitor General D. John Sauer stands: in 2015, Sauer filed an on behalf of 57 members of Congress opposing same-sex marriage. Specifically, he argued that \u201cout of deference to the States as separate sovereigns in our system of federalism, this Court should be reluctant to intrude into areas of traditional state concern, especially the law of marriage and domestic relations.\u201d<\/p>\n

Getting the votes<\/strong><\/p>\n

Those wishing to persuade the court to revisit Obergefell<\/em> and then reverse it face several obstacles, one of which is its ruling in the 2017 case of Pavan v. Smith<\/em>. In Pavan<\/em>, the court considered whether Arkansas could prohibit the birth mother\u2019s wife from being listed on their child\u2019s birth certificate. Over a dissent by Justice Neil Gorsuch (joined by Justices Clarence Thomas and Samuel Alito), the court ruled (without hearing argument) that the law governing birth certificates in Arkansas discriminated against same-sex couples and was therefore unconstitutional.\u00a0In doing so, the court\u2019s unsigned opinion drew on the language of Obergefell<\/em> and that \u201c\u2018married same-sex couples [enjoy the same] access to the \u2018constellation of benefits that the Stat[e] ha[s] linked to marriage.\u2019\u201d<\/p>\n

While the Pavan<\/em> majority treated the birth certificate issue as resolved, the dissent characterized it otherwise. For example, consider Gorsuch\u2019s dissent, which advanced at least four relevant arguments:<\/p>\n