The Supreme Court now has on its docket a case asking it to overrule Obergefell v. Hodges and to allow states to prohibit same-sex marriage. Hopefully, the justices will deny review of the case, and if they choose to hear it, they will emphatically reaffirm that laws prohibiting marriage equality are unconstitutional. But given the six justice conservative majority and their willingness to overrule long-standing precedent, there is every reason to worry.

The case has an unusual procedural posture. It involves Kim Davis, a clerk in Rowan County, Kentucky, who refused to issue marriage licenses to same sex couples. After she was instructed to do so, she refused to issue marriage licenses to anyone, even though that was part of her job responsibilities. When David Moore and David Ermold sought a marriage license, Davis refused, saying she was acting “under God’s authority” and that they could get a marriage license in a different county.

Moore and Ermold sued Davis, claiming that their constitutional rights were violated by the denial of the marriage license. A jury agreed and ruled in their favor, awarding them $50,000 in damages.  

Davis appealed to the United States Court of Appeals for the Sixth Circuit, which upheld the lower court’s decision. The Sixth Circuit stressed that as a government official, her religious beliefs were not a basis for violating the constitutional rights of others.  The court explained: “Those opposed to same-sex marriage do not have a right to transform their ‘personal opposition’ into ‘enacted law and public policy.’” The court stressed that the “Bill of Rights would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates.”

Davis now is seeking Supreme Court review of this decision, claiming that holding her liable for refusing to issue a marriage license to a same-sex couple violates her free exercise of religion, guaranteed by the First Amendment. Additionally, her petition for certiorari claims the Court’s decision in Obergefell has “no basis in the Constitution” and should be overruled.

The Supreme Court, of course, does not need to take the case. The question is whether there are four justices who will vote to grant review, and if so, whether there are five to overrule Obergefell.

On the one hand, marriage equality for gays and lesbians is now widely accepted.  Opinion polls consistently show that 70 percent of Americans believe that same-sex couples should have the right to marry. The Supreme Court often has said that in deciding whether to overrule a precedent it considers whether there has been reliance on it. A decade after Obergefell, gay and lesbian individuals undoubtedly have come to expect that they can marry.

But it is now a much more conservative Court than the one that decided Obergefell. It is impossible to imagine that this group of justices would have decided the case the same way if the same nine were on the bench in 2015.

Five of the current nine justices were part of the Obergefell decision. Two of the five who were in the majority remain: Sonia Sotomayor and Elena Kagan. Three of the four dissenters are still on the Court: John Roberts, Clarence Thomas, and Samuel Alito. And there are four new justices since 2015: Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson.

Some predictions are easy: Sotomayor and Kagan will not vote to take the case or to overrule Obergefell, and Jackson is sure to be with them. Thomas and Alito will certainly vote to overrule Obergefell and end a constitutional right to marriage equality. In fact, when the Court in Dobbs v. Jackson Women’s Health Center overruled Roe v. Wade, Justice Thomas in a concurring opinion said that Obergefell should be overturned as well.

What about the other justices? Chief Justice Roberts vehemently dissented in Obergefell.  Indeed, in his 20 years on the Court, the only dissent that Roberts has read from the bench was in Obergefell. A decade later, might he want to overrule that decision or might he be willing to follow precedent? Roberts did not join the majority opinion overruling Roe v. Wade, though he did concur  in upholding the Mississippi law that was being challenged and did not indicate that he would reaffirm Roe.

It is safe to predict that Gorsuch will join Thomas and Alito as votes to overrule Obergefell. Soon after coming on to the Supreme Court in 2017, Justice Gorsuch wrote a dissenting opinion that sharply criticized Obergefell and Justice Anthony Kennedy’s majority opinion in that case. In Pavan v. Smith, the Court struck down an Arkansas law that did not allow both spouses in a same-sex couple to have their name on a child’s birth certificate. The Court explained that “the Constitution entitles same-sex couples to civil marriage “on the same terms and conditions as opposite-sex couples.” Justice Gorsuch wrote a strong dissent, joined by Justices Thomas and Alito, arguing that Obergefell had not resolved this specific issue. Underlying the dissent was a persistent and strong disagreement with that decision.

What about Justices Kavanaugh and Barrett? They were both part of the majority to overrule Roe v. Wade. In Dobbs, Justice Kavanaugh wrote separately to express his disagreement with Justice Thomas’s claim that overturning Roe should lead to overruling Obergefell and other cases. Kavanaugh wrote: “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”

There is even less to indicate Justice Barrett’s views on the issue. She is unquestionably conservative and while a law professor joined a letter expressing the position that Obergefell was wrongly decided. But will she vote to overrule it?

It is tempting to say that marriage equality is now deeply embedded in our culture and so widely accepted that the Court is unlikely to overrule Obergefell. But given the Court’s current composition and recent history, it is impossible to be confident in such a prediction.

As a matter of constitutional law, however, this should be an easy case. Laws that prohibit same-sex marriage discriminate against gays and lesbian individuals. The Constitution’s guarantee of equal protection requires that any discrimination must at least meet a rational basis test and serve a legitimate government purpose. A state has no good reason for denying gays and lesbians of a right that all others possess. Moreover, for over a half century, the Supreme Court has held that there is a fundamental right to marry.

My hope is that the Supreme Court will recognize and uphold this well-established precedent and deny review in Kim Davis’ case. Taking the case would demonstrate that at least four justices want to overrule Obergefell. Rarely in history has the Supreme Court taken away constitutional rights. Dobbs did so as to the right to abortion. Will the conservative justices do it again?