Same-sex marriage legality could be challenged by US Supreme Court

Warning: This article contains discussion of discrimination against the LGBTQ+ community which some readers may find distressing.

Same-sex marriage could be challenged by the United States Supreme Court as it considers whether or not to revisit a case from 2015.

The case, known as Davis v. Ermold, centres on the likes of Kim Davis, a former Kentucky county clerk who refused to issue marriage licenses to same-sex couples after the 2015 Obergefell v. Hodges decision legalised such marriages.

Two men, David Ermold and David Moore, successfully sued Davis, winning $100,000 in damages. Davis appealed, claiming her actions were protected by her First Amendment right to religious freedom, but the Sixth Circuit Court of Appeals rejected that argument, ruling that public officials cannot violate citizens' constitutional rights based on personal beliefs.

The US Supreme Court is considering whether to take up a case that could potentially challenge the legality of same-sex marriage (Getty Stock Images)

"When an official’s discharge of her duties according to her conscience violates the constitutional rights of citizens, the constitution must win out," the judges wrote. "The Bill of Rights would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates."

Davis, who has had three divorces and four kids out of wedlock, is now asking the US Supreme Court’s conservative majority (6–3) to overturn that decision - and even to reconsider Obergefell itself, arguing it lacks grounding in 'the nation’s history or traditions,' echoing the reasoning used to overturn Roe v. Wade in 2022.

Davis's attorneys from the conservative Liberty Counsel, an organisation that has previously represented anti-abortion activists, claim that denying her protection would make the First Amendment 'hollow' for public servants.

"Anything less would leave the First Amendment’s promises hollow to those who agree to public service and are sued for exercising their religious beliefs during that time," her brief declared.

According to The Guardian, there is no guarantee that the Supreme Court will revisit this case, as it receives between 5,000 and 7,000 requests each term.

Legal experts, however, view the case as a long shot for reversing Obergefell, since it primarily concerns Davis' personal liability rather than the broader legality of same-sex marriage.

The case primarily concerns Kim Davis’ personal liability rather than the broader legality of same-sex marriage (Ty Wright/Getty Images)

Opponents warn that revisiting Obergefell could undermine rights for nearly 800,000 same-sex couples nationwide and embolden officials to disregard laws conflicting with their religious beliefs.

"A decade since Obergefell, there are now nearly 800,000 married same-sex couples living across the United States," Ermold and Moore’s brief argued.

"Overruling Obergefell could call into question the constitutional status of existing same-sex marriages and disrupt the lives of those who aspire to, plan their affairs around and benefit from same-sex marriage."

If you’ve been affected by any of these issues and want to speak to someone in confidence, contact the LGBT Foundation on 0345 3 30 30 30, 10am–6pm Monday to Friday, or email [email protected].