Ten years after the Supreme Court extended marriage rights to same-sex couples nationwide, the justices this fall will consider for the first time whether to take up a case that explicitly asks them to overturn that decision.
Kim Davis, the former Kentucky county clerk who was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple on religious grounds, is appealing a $100,000 jury verdict for emotional damages plus $260,000 for attorneys fees.
In a petition for writ of certiorari filed last month, Davis argues First Amendment protection for free exercise of religion immunizes her from personal liability for the denial of marriage licenses.
More fundamentally, she claims the high court’s decision in Obergefell v Hodges — extending marriage rights for same-sex couples under the 14th Amendment’s due process protections — was “egregiously wrong.”
“The mistake must be corrected,” wrote Davis’ attorney Mathew Staver in the petition. He calls Justice Anthony Kennedy’s majority opinion in Obergefell “legal fiction.”
The petition appears to mark the first time since 2015 that the court has been formally asked to overturn the landmark marriage decision. Davis is seen as one of the only Americans currently with legal standing to bring a challenge to the precedent.
Rowan County Clerk Kim Davis, with son Nathan Davis, a deputy clerk, reads a statement to the media outside the Rowan County Courthouse in Morehead, Ky., on September 14, 2015.
Pablo Alcala/Lexington Herald-Leader/Tribune News Service via Getty Image
“If there ever was a case of exceptional importance,” Staver wrote, “the first individual in the Republic’s history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it.”
Lower courts have dismissed Davis’ claims and most legal experts consider her bid a long shot. A federal appeals court panel concluded earlier this year that the former clerk “cannot raise the First Amendment as a defense because she is being held liable for state action, which the First Amendment does not protect.”
Davis, as the Rowan County Clerk in 2015, was the sole authority tasked with issuing marriage licenses on behalf of the government under state law.
Justices of the US Supreme Court pose for their official photo at the Supreme Court in Washington, DC on October 7, 2022.
Olivier Douliery/AFP via Getty Images
“Not a single judge on the U.S. Court of Appeals showed any interest in Davis’s rehearing petition, and we are confident the Supreme Court will likewise agree that Davis’s arguments do not merit further attention,” said William Powell, attorney for David Ermold and David Moore, the now-married Kentucky couple that sued Davis for damages, in a statement to ABC News.
A renewed campaign to reverse legal precedent
Davis’ appeal to the Supreme Court comes as conservative opponents of marriage rights for same-sex couples pursue a renewed campaign to reverse legal precedent and allow each state to set its own policy.
At the time Obergefell was decided in 2015, 35 states had statutory or constitutional bans on same-sex marriages, according to the National Conference of State Legislatures. Only eight states had enacted laws explicitly allowing the unions.
So far in 2025, at least nine states have either introduced legislation aimed at blocking new marriage licenses for LGBTQ people or passed resolutions urging the Supreme Court to reverse Obergefell at the earliest opportunity, according to the advocacy group Lambda Legal.
In June, the Southern Baptist Convention — the nation’s largest Protestant Christian denomination — overwhelmingly voted to make “overturning of laws and court rulings, including Obergefell v. Hodges, that defy God’s design for marriage and family” a top priority.
Gay couples wait in line to request a marriage license at the Polk County Administration Building April 27, 2009 in Des Moines, Iowa.
Scott Olson/Getty Images
Support for equal marriage rights softening
While a strong majority of Americans favor equal marriage rights, support appears to have softened in recent years, according to Gallup — 60% of Americans supported same-sex marriages in 2015, rising to 70% support in 2025, but that level has plateaued since 2020.
Among Republicans, support has notably dipped over the past decade, down from 55% in 2021 to 41% this year, Gallup found.
Davis’ petition argues the issue of marriage should be treated the same way the court handled the issue of abortion in its 2022 decision to overturn Roe v Wade. She zeroes in on Justice Clarence Thomas’ concurrence in that case, in which he explicitly called for revisiting Obergefell.
The justices “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote at the time, referring to the landmark decisions dealing with a fundamental right to privacy, due process and equal protection rights.
“It is hard to say where things will go, but this will be a long slog considering how popular same-sex marriage is now,” said Josh Blackman, a prominent conservative constitutional scholar and professor at South Texas College of Law.
Blackman predicts many members of the Supreme Court’s conservative majority would want prospective challenges to Obergefell to percolate in lower courts before revisiting the debate.
The court is expected to formally consider Davis’ petition this fall during a private conference when the justices discuss which cases to add to their docket. If the case is accepted, it would likely be scheduled for oral argument next spring and decided by the end of June 2026. The court could also decline the case, allowing a lower court ruling to stand and avoid entirely the request to revisit Obergefell.
“Justices Brett Kavanaugh and Amy Coney Barrett seem wildly uninterested. Maybe Justice Neil Gorsuch, too,” said Sarah Isgur, an ABC News legal analyst and host of the legal podcast Advisory Opinions.
“There is no world in which the court takes the case as a straight gay marriage case,” Isgur added. “It would have to come up as a lower court holding that Obergefell binds judges to accept some other kind of non-traditional marital arrangement.”
Ruling wouldn’t invalidate existing marriages
If the ruling were to be overturned at some point in the future, it would not invalidate marriages already performed, legal experts have pointed out. The 2022 Respect for Marriage Act requires the federal government and all states to recognize legal marriages of same-sex and interracial couples performed in any state — even if there is a future change in the law.
Davis first appealed the Supreme Court in 2019 seeking to have the damages suit against her tossed out, but her petition was rejected. Conservative Justices Thomas and Samuel Alito concurred with the decision at the time.
“This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them,” Thomas wrote in a statement.
Many LGBTQ advocates say they are apprehensive about the shifting legal and political landscape around marriage rights.
There are an estimated 823,000 married same-sex couples in the U.S., including 591,000 that wed after the Supreme Court decision in June 2015, according to the Williams Institute at UCLA Law School. Nearly one in five of those married couples is parenting a child under 18.
Since the Obergefell decision, the makeup of the Supreme Court has shifted rightward, now including three appointees of President Donald Trump and a 6-justice conservative supermajority.
Chief Justice John Roberts, among the current members of the court who dissented in Obergefell a decade ago, sharply criticized the ruling at the time as “an act of will, not legal judgment” with “no basis in the Constitution.” He also warned then that it “creates serious questions about religious liberty.”
Davis invoked Roberts’ words in her petition to the high court, hopeful that at least four justices will vote to accept her case and hear arguments next year.
