The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Supreme Court Refuses to Hear Case Seeking to Overturn Obergefell
This result is unsurprising, and was predicted by most analysts, including myself.
Today, the Supreme Court refused to hear Davis v. Ermold, a case in which the plaintiff sought to get the Court to overrule Obergefell v. Hodges, the historic 2015 ruling striking down laws banning same-sex marriage. There were no recorded dissents.
Some in the media and the LGBT rights community worried that the Court would take the case and reverse Obergefell. Most informed observers believed otherwise. See my August post explaining why, which built on an analysis by my Cato Institute colleague Walter Olson.
Davis, a former Kentucky county clerk was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple, claiming she had a constitutional religious liberty right to do so. She was appealing a jury verdict against her for a total of $360,000 in emotional damages and attorneys fees. Her argument for overturning Obergefell was appended to this extremely weak religious liberty claim. I summarized the reasons why the claim is weak in my earlier post on this case:
Davis claims that government officials have a First Amendment right to refuse to issue marriage licenses to couples they disapprove of on religious grounds. It's worth noting, here, that some people have religious objections to interracial marriages and interfaith marriages, among other possibilities. Does a clerk with religious objections have a constitutional right to refuse to issue a marriage license to an interracial couple or to one involving an intermarriage between a Jew and a Christian? The question answers itself….
In the private sector, I think there often is a First Amendment free speech or religious liberty right to refuse to provide services that facilitate same-sex marriages, as with bakers who refuse to bake a cake for a same-sex wedding, website designers who refuse to design a site for such a wedding, and so on…
Public employees engaged in their official duties are a very different matter. They are not exercising their own rights, but the powers of the state. And the services they provide are often government monopolies to which there is no alternative.
In a June post on the tenth anniversary of Obergefell, I explained the great benefits of that decision, why it reached the right result (even though I also believe it should have used different reasoning), and why it is likely to prove durable. Maybe the Court will yet prove me wrong on the latter point. But it was never going to happen in the Davis case.
There are plenty of genuine threats to liberty and equality in these difficult times. We should focus on them, not on mirages like this dog of a case.
