When the Supreme Court first recognized a nationwide constitutional right to same-sex marriage in the 2015 case Obergefell v. Hodges, Kim Davis didn’t like it. So Davis – a county clerk in Kentucky who apparently saw herself as the interpreter and administrator of all laws – decided she had the right “under God’s authority” to refuse to issue marriage licenses. 

Davis should’ve been fired on the spot. The job of any public official is to follow the law as it stands, not to exercise their personal preference (or the Almighty’s). Instead, Davis’s defiance has now landed her on the Supreme Court’s doorstep, with a chance to undo the very law she chose to ignore.  

The Kentucky county where Davis worked eventually resumed issuing same-sex marriage licenses (but allowed individual clerks not to sign the official forms if they personally objected). David Moore and David Ermold, a gay couple whose application had been denied by Davis, sued her and won $360,000 in damages and attorneys’ fees, and an appeals court upheld the verdict. Now Davis has taken the opportunity of her loss to formally ask the Supreme Court to vacate that ruling – and, while they’re at it, to reverse Obergefell itself.  

While the Court is statistically unlikely to take Davis’s case, or any particular case – typically the Court grants certiorari (review) in only two to three percent of all cases presented to it – a curious procedural development indicates potentially heightened interest among the justices. After Davis filed her petition for review, Moore and Ermold chose not to respond. As Amy Howe explains for SCOTUSblog, parties sometimes take this tack for valid strategic reasons: They might want to signal to the Court that an issue isn’t even worth the back of the hand, or they might lack resources to pay a lawyer to file an opposition. But, last week, the Court ordered Moore and Ermold to respond to Davis’s request for review. As Howe concludes, the Court’s order – which can be issued upon the request of even a single justice – “essentially took Davis’ case out of the group of cases facing virtually automatic denial (without a call for a response) into the group of cases that could theoretically be granted.”

Could the Supreme Court actually take the Davis case, which requires four votes? And might five justices reverse Obergefell? Some legal observers have expressed serious concern that the Court might overturn Obergefell, but I’m securely in the “no” camp on both questions. There’s cause for concern, but the constitutional right to same-sex marriage will stand.

Let’s do the math. The three liberals — Justices Elana Kagan, Sonia Sotomayor, and Ketanji Brown Jackson — surely will oppose any effort to revisit or overrule Obergefell. Kagan and Sotomayor were in the five-justice majority recognizing same-sex marriage in that case, and Jackson is ideologically in lockstep. They’ll vote as a block against granting certiorari on the Davis case and, if the Court does take it over their objections, they’ll vote to reaffirm Obergefell.  

Justice Clarence Thomas, on the other hand, seems a safe vote to take the Davis case and reverse the same-sex marriage decision. He was on the dissenting (losing) side of Obergefell. And he took a detour in the Court’s 2022 Dobbs decision (which overruled Roe v. Wade) to declare in a concurrence that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including… Obergefell.” (It might well be that Thomas alone issued the unusual order to Moore and Ermold to respond to Davis’s petition for certiorari.) 

Justice Samuel Alito didn’t join Thomas in that particular concurrence, but they almost always agree – 97% of the time in all cases and 100% in closely-divided cases during the most recent term, according to SCOTUSblog’s annual “Stat Pack.” And Alito’s unbending conservative tendencies likely put him in the same hostile posture as Thomas towards the same-sex marriage ruling in Obergefell. 

That leaves us with four swing votes: Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. 

Gorsuch is the best bet of this group to align with Thoms and Alito, though far from certain to do so. He’s conservative, but he’s unpredictable. Last term, Gorsuch sided with Thomas and Alito in 77% and 76% of all cases, respectively – but he also agreed with Kagan 64% of the time. Gorsuch also authored a major 2020 ruling establishing protections for gay and transgender people against employment discrimination. He’s a toss-up, perhaps leaning slightly against upsetting Obergefell, in my estimation. 

Even if Gorsuch favors taking the Davis case, I don’t see a fourth vote (to take it) or certainly a fifth (to overturn Obergefell). I’m putting Roberts safely with the liberals here. Yes, he joined Thomas and Alito in dissent in Obergefell. But he has made it his career’s work to drag the Court towards moderation and to avoid dramatic, ideologically-charged, politically-divisive decisions. (His success in that endeavor is debatable, but it’s clearly his motivating force.) For the Supreme Court to reconsider and overturn Obergefell just ten years after its issuance, without any particular intervening legal or political justification, would contravene Roberts’s core institutional priorities. 

The analysis on Kavanaugh and Barrett is similar, in my view. They’re conservative, but both have joined with the liberal justices in recent major cases, and they’ll be reluctant to pull the plug on a major precedent so recently decided as Obergefell. Kavanaugh and Barrett (among others) could be further dissuaded from taking the Davis case for procedural reasons. As David Lat, author of the Original Jurisdiction newsletter, noted to me, Davis did not challenge Obergefell’s constitutionality in the trial court; she only added it as an afterthought during the appeal. The Supreme Court typically won’t consider arguments that the parties did not fully argue below, and Kavanaugh and Barrett are notably exacting about procedural niceties. (Lat also points out that Davis concedes in her brief that “already married couples get to stay married. Thanks, I guess?”) 

The fundamental question is whether the justices will reconsider established precedent of especially recent vintage. The Court dramatically reversed nearly fifty years of precedent on abortion rights when it decided Dobbs in 2022. But the Davis case is different. Obergefell is only ten years old, and there has been neither a legal nor a cultural shift against gay marriage since then. 

To the contrary, gay marriage seems to have reached a point of broad and growing acceptance. Public support for gay marriage has climbed since Obergefell, and a 2024 Gallup poll showed approval by 69% of all Americans. Congress passed a statute that formally codified the right to gay marriage in 2022. Even Donald Trump, though characteristically scattershot on the issue, said plainly in 2016 to 60 Minutes, “It was settled in the Supreme Court. I mean it’s done. These cases have gone to the Supreme Court. They’ve been settled. And I’m fine with that.” 

There’s cause for concern. Obergefell and its constitutional protections for gay men and women are so fundamental to our core notions of equal protection that any threat must be taken seriously. But it will almost certainly remain the law of the land, now and for a long time, whether Kim Davis likes it or not.