The United States Supreme Court granted the ability for each United States citizen to marry whom they would like when the Court ruled on Obergefell v. Hodges in 2015. This decision has been synonymous with allowing those in the LGBTQ+ community to marry, but ultimately, the Court’s decision hinged on the “right to marry” being a fundamental right granted under the 14th Amendment of the Constitution. The right to marry for all.
The ruling was dynamic as it superseded any state’s law that made same-sex marriage illegal. Obergefell requires every state to recognize same-sex marriage and to also recognize same-sex marriages from other states. However, while that is the case, there are still 30 states that have laws that specifically do not recognize and/or ban same-sex marriage. Georgia, Alabama, South Carolina, Florida, and Tennessee all still have laws which ban same-sex marriage. That means that the entire “right to marry” of every United States citizen hinges solely on the decision in Obergefell. And now one singular citizen believes she has standing to challenge that right. Enter Kim Davis.
After the decision in Obergefell, Kim Davis was employed as a Clerk with Rowan County in Kentucky, another state which prior to the Obergefell decision, had a ban on same-sex marriage. Ms. Davis refused to provide marriage licenses to same-sex couples in direct opposition to the Obergefell decision citing her religious views as reason why she should not be required to do so. She also stopped providing marriage licenses to heterosexual couples as well. Ms. Davis served five days in jail for contempt of court for refusing to provide those marriage licenses, and in September of 2023, she was ordered to pay $100,000 in damages to those harmed by her actions. Now she says that she shouldn’t be held accountable because the Court was wrong in deciding Obergefell. She says the Court was wrong because the Constitution provides no “right to marry” and that their decision in Obergefell made her choose between her religion or her job.
Ms. Davis must have standing to challenge the decision in Obergefell. Standing is a party’s ability to even bring the lawsuit in the first place. It ensures that a Court hears genuine disputes between parties that have a stake in the outcome. Many will say that if anyone has standing, Ms. Davis does. I say, that’s not a good enough reason. Just because Ms. Davis manufactured the very circumstances she finds herself in, does not mean she has standing. Ms. Davis does not have a stake in the outcome. The only stake Ms. Davis has is one of avoiding the consequences of her actions. The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” In this instance, these two terms may seem at odds with each other since Ms. Davis was trying to exercise her religion. Therefore, the Supreme Court should overrule Obergefell to accommodate her, right? Absolutely not.
The stakes are this: every single American’s ability to marry whom they desire versus one person’s ability to exercise her religion freely. Let’s take that in stride. Did Obergefell infringe on Ms. Davis’s ability to freely exercise her religion? Yes, however, there is a caveat there as she was participating in the duties of an elected government official. Obergefell infringed on her right to exercise her religion as a government official.
As we previously noted, the government shall not make a law respecting an establishment of religion. Ms. Davis used her religion in a position of government to deny others their 14th Amendment right to marry. Under any other circumstances, Ms. Davis would be free to cite her religion for why she didn’t want to participate in recognizing same-sex marriage. However, in the role as an elected official, she gave her religion higher status than that of the 14th Amendment and the Obergefell decision, essentially establishing her religion over the law of the land.
Ms. Davis’s request for relief is that Obergefell be overturned since it infringed on her ability to freely exercise her religion, resulting in the damages she has been ordered to pay. The Supreme Court would have to agree that her ability to exercise her religion in her capacity as a government official outweighs that of every American’s right to marry. I do not find that argument to be persuasive, but it is up to the Supreme Court to determine that, not me. It is important to note that of the four dissenting justices in Obergefell, three remain on the bench today: Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas. Only two members of the majority remain on the bench: Justice Elena Kagan and Justice Sonya Sotomayor. Should the Supreme Court decide to hear the arguments in this matter, Emily Owens Price and I will work to provide explanations and context for what’s to come. For now, we wait.
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