Is Gay Marriage Really Under Threat at the Supreme Court?

Asking SCOTUS to hear a case is not the same thing as convincing SCOTUS to hear a case.

Former Secretary of State Hillary Clinton delivered some stark words of warning this week about the prospects of same-sex marriage surviving over the long term as a constitutional right. "The Supreme Court will hear a case about gay marriage," Clinton said. "My prediction is they will do to gay marriage what they did to abortion."

Is Clinton right to worry? A quick glance at some recent breaking news headlines might lead you to think that she is. "Supreme Court formally asked to overturn landmark same-sex ruling," reported ABC News. "SCOTUS has been asked to overturn same-sex marriage," observed USA Today.

But the headlines only told part of the story.

Yes, the U.S. Supreme Court was recently asked to revisit its 2015 decision in Obergefell v. Hodges, which held that "the right of same-sex couples to marry…is part of the liberty promised by the Fourteenth Amendment." The person who did the asking is Kim Davis, the former Kentucky county clerk who earned national headlines when she refused to issue marriage licenses to same-sex couples. Davis has since been fighting an uphill legal battle to overturn Obergefell. Having recently lost before the U.S. Court of Appeals for the 6th Circuit, she is now trying to persuade the high court to take up her case on appeal.

The odds are not exactly in Davis' favor. The Supreme Court is "formally asked" to hear thousands of new cases each term, yet the justices only agree to hear a small fraction of them. And most of the thousands of parties seeking such review are turned away by the Supreme Court without receiving so much as a single word of explanation.

To request review by the Supreme Court, in other words, is definitely not the same thing as obtaining review by the Supreme Court. The chances are good that the petition for review in Davis v. Ermold will be denied, just like those thousands of other petitions are denied by the justices every term.

However, it is also true that the Supreme Court does sometimes agree to hear a case for the express purpose of reconsidering one of its own precedents, such as when the Court took up Dobbs v. Jackson Women's Health Organization (2022) and used it as a vehicle for overturning Roe v. Wade (1973) and eliminating the constitutional right to obtain an abortion.

That's the thing about precedent at the Supreme Court. It matters—until it doesn't.

So, the real question to ponder is whether the requisite five votes exist on the Supreme Court right now to overturn Obergefell. Absent the magic number of five, Davis will never succeed in making Davis the next Dobbs.

I don't think there are five such votes at the present. If I had to guess, I would say that only Clarence Thomas and Samuel Alito, and perhaps also Neil Gorsuch, could be counted on to vote in favor of that hugely controversial result at this time.

But we won't know for sure until the Supreme Court returns in a few weeks from its summer break. Until then, you too may guess away.