Kim Davis, marriage equality and the Supreme Court: An explainer

No, the court hasn't decided to take up her case to overturn Obergefell. But at least one justice has shown an interest in taking the case.

There’s been lots of concern and some unwarranted panic regarding Kim Davis, the Kentucky clerk who infamously refused to issue marriage licenses to same-sex couples in 2015 after the Obegefell marriage equality decision, petitioning the Supreme Court in recent weeks to overturn Obergefell.

The story and the details have morphed so much that some people on social media actually believe the high court has taken up the case. That is not true.

Kim Davis is among thousands of people or entities petitioning the Supreme Court each year to review their losses in lower courts, the overwhelming majority of which are denied. Davis’ case is obviously getting a lot of attention because of who she is, and because this is the first time a case seeking an outright overturning of Obergefell has reached the court.

However, it is clear that one or more justices has taken an interest in hearing her case—even if ultimately the court itself refuses to hear it—and this may be where the confusion, and the fear, are stemming from. So let me explain.

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Davis, a Rowan County, Kentucky clerk, came to public attention in 2015, after the Obergfell ruling, when she refused to give a license to a gay couple, David Moore and David Ermold. Davis said she was “under God’s authority” after refusing orders from local and state authorities, including Kentucky Governor Andy Beshear.

At one point she spent several days in jail, all the while becoming a hero for Christian nationalists. Moore and Ermold sued (while a judge had separately ordered Davis to issue the licenses). A jury eventually sided with the couple and ordered that Davis pay the couple $100,000 plus legal fees of over $200,000.

Davis appealed to the 6th Circuit Court of Appeals, still claiming her free speech was violated, but that court also ruled against her, deciding that she is protected by the First Amendment as a private citizen but that these were her actions as a public servant, working for the government, and thus did not have such protections.

And so, she has now appealed to the Supreme Court, asking the justices not only to review her First Amendment claims but also to overturn Obergefell outright.

As SCOTUSblog explains, when someone appeals to the Supreme Court, the winning litigants—in this case, Moore and Ermold—have the option to file a response, or to decide to forego it, which is called a waiver:

There are any number of reasons why litigants may decide to waive the opportunity to respond to a petition, ranging from a desire to signal that they do not deem the case worthy of their (or the justices’) time to considerations of timing or finances.

But litigants are only required to submit a brief form memorializing their decision to waive, so there is no way to know why Moore and Ermold ultimately chose in early August to waive their right to respond. Two days later, Davis’ petition was distributed to the justices for their consideration.

Most likely, Moore and Ermold saw it as a waste of time and money to respond. Plenty of litigants do not respond, seeing it as highly unlikely the Supreme Court will take a case, and most often the Supreme Court does not.

Indeed, when the court is petitioned from someone who lost in the lower courts, the court can, and more often than not does, decide to dismiss the case without a response from the litigants. However, the court can’t even consider taking up the case without the litigants providing a response. In that scenario, the court directs the litigants to file a response—and it only takes one justice to ask for the response.

Per Scotusblog: “Any single justice can call for a response, and it indicates that at least one justice wants to see the other side’s arguments before the court decides whether to grant or deny review.”

Last week the court directed Moore and Ermold to respond to Davis’ petition, giving them a deadline of September 8th. The couple’s attorney requested and received an extension to Oct. 8.

So, one or more justices asked for the response. It would take four justices, however, to decide, after reviewing the petition and the response, to take the case. And usually those four justices won’t decide to take the case unless they know they’re likely to get a fifth justice on board.

We can be sure that Clarence Thomas and Samuel Alito asked for the response. Alito has whined about how unfair marriage equality supposedly is to anti-LGBTQ people and Thomas, in a concurring opinion in Dobbs, infamously opined that the court should revisit Obergefell. Perhaps even Neal Gorsuch requested a response, since he once invited a challenge to Obergefell, writing a dissenting opinion in an Arkansas gay parenting case in 2017.

Interestingly, Chief Justice John Roberts was in the majority in that case, with the court ruling 6-3 that Arkansas had to put both married same-sex parents on the birth certificates of their children, basing the decision on the Obergefell ruling. Roberts had been in the minority on Obergefell, but two years later he rightly recognized it as precedent.

So it wouldn’t seem Roberts would be interested in taking up the case to overturn Obergefell and some legal observers have said that Amy Coney Barrett and Brett Kavanaugh don’t seem interested, though I’m not sure why not. The court could take it up to carve out a religious exemption for government workers even as they don’t overturn Obergefell—or they could overturn it, which obviously would be disastrous. Many legal observers don’t expect them to do so right now, at least not with this case, seeing it as a long-shot by Davis—even if the court does eventually take up Obergefell in the future.

But we shall see.