The Real Reason Kim Davis Never Stood a Chance at the Supreme Court

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On Monday, the Supreme Court denied a request from county clerk turned anti-gay gadfly Kim Davis to reconsider and overturn Obergefell v. Hodges, the 2015 decision recognizing same-sex couples’ constitutional right to marry. There were no noted dissents. It is not remotely surprising that the justices turned away Davis’ petition: There probably aren’t five votes to reconsider Obergefell today—and even if there were, this zombie case would be a terrible vehicle for doing so. No one should assume that gay equality is safe at the Supreme Court. But for now, at least, the Republican-appointed justices seem to prefer indirect assaults on the rights of gay Americans over a head-on attack on their core constitutional freedoms.

Davis v. Ermold, the case that SCOTUS swatted away on Monday, was always a long-shot appeal. Many Americans likely remember the petitioner, a Kentucky clerk who refused to grant a marriage license to a same-sex couple in the wake of Obergefell, citing “God’s authority.” Many may recall that she was briefly jailed in contempt of court, becoming a cause célèbre among anti-gay Republicans. But few know what happened next: One couple whom Davis discriminated against sued her for violating their civil rights, and a jury ordered her to pay $360,000 in damages in attorneys’ fees. She and her lawyers at the fringe-right law firm Liberty Counsel have spent years fighting that award. And that is what Davis v. Ermold is really about.

Davis’ chief claim is that she should be able to raise a constitutional defense to the lawsuit against her, claiming a First Amendment right to deny the marriage license based on her own religious liberty. She lost that argument at every court below, because—and this is pretty obvious—an agent of the state who’s performing a government service has no right to unlawfully discriminate against members of the public. Nor does such an individual have any entitlement to take the law into her own hands, defy a court order, and decline to perform the basic functions of her office. Even hard-right judges who oppose Obergefell had to acknowledge that she had no constitutional leg to stand on.

After losing several rounds of litigation over the First Amendment issue, Davis’ lawyers decided to tack on a bigger request: Suddenly, they did not merely ask for exemptions from Obergefell; they wanted the Supreme Court to overturn it altogether. They raised this claim so late in the game that the appeals court ruled that it had been forfeited. But that did not stop them from including the frontal attack on Obergefell in their appeal to SCOTUS. The request to overturn marriage equality was tacked on to the petition like an afterthought, following the main arguments about religious freedom.

If Liberty Counsel’s primary goal was to draw attention—and, by extension, fundraising dollars—by taking on marriage equality itself, it worked: Media coverage of this case was wildly disproportionate to its (near-zero) chances of success. (The strategy may have prevailed because of widespread confusion about Supreme Court procedure: Just because the justices considered the petition does not mean they were seriously thinking about reversing Obergefell.) On Monday, though, the appeal predictably flopped. During Davis’ previous trip to SCOTUS in 2020, Justice Clarence Thomas at least seized the opportunity to write a brief missive against marriage equality, joined by Justice Samuel Alito. This time, though, not a single justice wrote a word. Nor did any justice express interest in taking up Davis’ plea. It was dead on arrival.

What does this tell us? Nothing we didn’t already know. Thomas and Alito may still be gunning for Obergefell. But the other Republican appointees appear uninterested in killing it. Even Justice Amy Coney Barrett recently noted that the ruling has created “very concrete reliance interests” for same-sex couples that the court would not lightly disturb—contrasting it with Roe v. Wade, whose reliance interests she dismissed as illegitimate. If this Supreme Court were considering the issue for the very first time today, it would almost certainly hold that the Constitution does not protect same-sex marriage by a 6–3 vote. But now that Obergefell is entrenched as precedent, and widely supported by Americans, they’ve shown no appetite for spending down their political capital to issue an unpopular ruling that could only hurt the Republican Party.