Same Sex Marraige

The US Supreme Court has set a date on whether it will hear a case challenging same sex marriage.

Back in July, Kim Davis – who made headlines in 2015 for refusing to issue marriage licenses to same-sex couples – filed a petition for writ of certiorari, appealing two past verdicts that ordered her to pay $100,000 to one of the same-sex couples she denied a marriage license to, and $250,000 in attorney fees.

The filing also urged the Court to overturn the landmark Obergefell v. Hodges ruling, calling it “grounded entirely on the legal fiction of substantive due process.” Davis further claimed that the 2015 decision forced her to choose “between her religious beliefs and her job.”

On 23 October, the Court announced that it had set a date to consider whether to hear the challenge.

According to SCOTUSblog, the nine justices will be meeting in a private conference on 7 November.

The blog went on to reveal that the Court usually grants reviews after two consecutive conferences. The upcoming hearing will be the first for Davis’ case. If the Court denies a review following their meeting on 7 November, an announcement can be released as soon as 10 November.

The recent update comes a week after conservative Supreme Court Justice Amy Coney Barrett – who was appointed to the high court during Trump’s first term– addressed the possibility of Obergefell v. Hodges being overturned.

During a recent conversation with The New York Times‘s Ross Douthat, Barrett said marriage equality has “very concrete reliance interests,” making it unlikely to be taken away.

Ted Eytan on Flickr

She went on to define “reliance interests” as “things that would be upset or undone if a decision is undone.”

Elsewhere in the interview, Douthat inquired if there can be “social reliance interests in the sense of people making life choices on the basis of a right being protected.”

He added: “One of the arguments for why Obergefell v Hodges is unlikely to ever be overturned is the idea that people have made decisions about who to marry and therefore where to live and children… Everything else, on the basis of that ruling.”

In response, Barrett described Douthat’s example as “absolutely reliance interests,” stating that she wouldn’t classify them as “social reliance interests.”

“That kind of sounds like in things in the air. Those are very concrete reliance interests. So those would be classic reliance interests in the terms of the law, in terms of legal doctrine… Those are financial. Those are medical,” she explained.

Another conservative Supreme Court Justice who shared a similar opinion is Samuel Alito. While speaking at an academic conference on 3 October, he said that marriage equality is “entitled to respect,” despite his dislike of the Obergefell v. Hodges ruling.

For information about the status of marriage equality in the US, click here.

When will the US Supreme Court make a decision on whether it will hear the case?

As of now, no date has been set for when the US Supreme Court will make its decision. According to the Court’s website, the case will be considered by the nine justices during their 29 September conference, with a decision potentially coming in October. However, it could take longer, as the Court sometimes “re-lists particularly controversial cases,” meaning they may be discussed at multiple conferences, per Forbes.

What are legal experts saying about the petition and the likelihood of same-sex marriage being overturned?

Many legal experts doubt that the US Supreme Court will (1) hear Kim Davis’ case or (2) overturn Obergefell v. Hodges.

In an interview with Newsweek, Northeastern University law professor Daniel Urman said it was “very unlikely” the Court would take on the case, despite the current conservative majority on the bench.

“There’s a chance that a conservative majority could use the case to expand the rights of religious objectors to same-sex marriage. But that’s not the same as overturning the right itself, and I don’t see a majority of the Court ready to do that,” Urman told the outlet.

“Culturally, same-sex marriage has become embedded in American life, and it is still popular in public opinion polls.”

Carl Esbeck, a religious liberty expert at the University of Missouri School of Law, and Geoffrey R. Stone, a law professor at the University of Chicago, expressed similar views in statements to USA Today.

“It would be a useless act to overturn Obergefell. The politics have simly moved on from same-sex marriage, even for conservative religious people,” Esbeck said.

Stone noted that while some Supreme Court justices may disagree with the Obergefell v. Hodges ruling, they are unlikely to overturn it given the public’s support for marriage equality and a desire to “avoid the appearance of interpreting the Constitution in a manner that conforms to their own personal views.” He added: “Even some of the conservative justices might not vote to overrule Obergefell.”

Lastly, ABC News legal analyst Sarah Isgur stated that “there is no world in which the Court takes the case as a straight gay marriage case.”

“Justices Brett Kavanaugh and Amy Coney Barrett seem wildly uninterested. Maybe Justice Neil Gorsuch, too,” she continued. “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.”

What will happen if same-sex marriage is overturned? Is there current legislation to combat the decision?

If marriage equality were overturned, the US would likely revert to the pre-Obergefell v. Hodges system, leaving the decision to each state. However, existing same-sex couples would still be protected under a 2022 law signed by former US President Joe Biden.

On 13 December, he enacted the Respect for Marriage Act, which requires the federal government — and all US states and territories — to recognise same-sex and interracial marriages performed in other states. For example, if a gay couple from Arkansas — where marriage equality would be banned if Obergefell were overturned — married in California, Arkansas would still be required to honour their union.

Is Kim Davis the only one targeting marriage equality through legal means?

No, Kim Davis isn’t the only conservative figure targeting same-sex marriage. According to a February report from NBC News, lawmakers in at least nine states — including Michigan, Idaho, Montana, North Dakota, and South Dakota — have sought to reverse the landmark Obergefell v. Hodges ruling. Meanwhile, lawmakers in Texas, Missouri, Oklahoma, and Tennessee have introduced proposals to create a new category of marriage, called a “covenant marriage,” which would be reserved for one man and one woman.