Moreover, even if there are four justices who might be inclined to do so, they won’t want to grant review unless they are confident that there is a fifth vote to overturn Obergefell.
Although we don’t know whether Davis has the votes, it remains possible. While this moratorium was in effect, Davis refused to issue a marriage license to Moore and Ermold.
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.
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.
If the justices deny review, however, that announcement could come as soon as Nov.
10.
Cases: Obergefell v. Hodges, Davis v. 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, a local county clerk from Kentucky made national headlines when she refused on religious grounds to issue a marriage license to a gay couple, David Moore and David Ermold. 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.
“Now is not the time to let down our guard.”
Supreme Court formally asked to overturn landmark same-sex marriage ruling
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.
"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.
Lower courts allowed the suit to proceed, and the Supreme Court in 2020 declined to intervene at that stage.
Thomas wrote at the time that while Davis' case was a "stark reminder" of the consequences of Obergefell, it didn’t "cleanly present" questions about that decision.
More: Kim Davis refused same-sex marriage license in 2015.
Now, he's worried.
But there has not been the same kind of conservative movement to take back marriage rights for same-sex couples as there was to get rid of the constitutional right to an abortion.
There are an estimated 823,000 married same-sex couples in the United States, more than double the number in 2015, according to the Williams Institute at the UCLA School of Law, a think tank that researches sexual orientation and gender identity issues.
"There’s good reason for the Supreme Court to deny review in this case rather than unsettle something so positive for couples, children, families, and the larger society as marriage equality," Mary Bonauto, a senior director with LGBTQ Legal Advocates & Defenders, said when Davis filed her appeal.
More: Justice Alito still doesn't like court's gay marriage decision but said it's precedent
Davis made headlines when she refused to issue marriage licenses to gay couples after the Supreme Court's 2015 decision, landing her in jail for five days on a contempt of court charge.
When Davis was sued by David Ermold and David Moore, she argued that legal protections that provide immunity for public officials prevented the challenge.
The court of appeals acknowledged that in Obergefell the Supreme Court observed that “many people ‘deem same-sex marriage to be wrong’ based on ‘religious or philosophical premises.’” “But those opposed to same-sex marriage,” the court of appeals wrote, “do not have a right to transform their ‘personal opposition’ into ‘enacted law and public policy.’” “The Bill of Rights,” the court stated, “would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates.”
Davis came to the Supreme Court on July 24, asking the justices to review the 6th Circuit’s decision.
In a separate case regarding her refusal to issue any marriage licenses, U.S. District Judge David Bunning ordered Davis to issue the licenses to both gay and straight couples. Hodges, due to her religious beliefs.
Davis asked the court to overturn the decision as she appealed the case in which she was ordered to pay compensation to a couple after she denied them a marriage license.
More: Gay marriage at the Supreme Court?
Instead, at least one justice – potentially Justice Samuel Alito or Neil Gorsuch, because the justices who participate in the cert pool would not yet have received a memorandum describing the case – wanted to think about it. Moore and Ermold’s case continued, and in 2023 a jury awarded them damages of $50,000 apiece.
Davis appealed to the U.S.
Court of Appeals for the 6th Circuit, where she argued (among other things) that she could not be held liable because issuing Moore and Ermold a marriage license would have violated her right to freely exercise her religion.
Earlier this year, the 6th Circuit rejected Davis’ appeal. If the case is accepted, it would likely be scheduled for oral argument next spring and decided by the end of June 2026.
First, they wrote, she didn’t make the “current version” of her First Amendment argument until relatively late in the game – in her reply in the 6th Circuit, “filed nine years into the case. Jackson Women’s Health Organization, wrote a concurring opinion suggesting that Obergefell, among several other precedents, should be “reconsider[ed].” More recently, without addressing Obergefell directly, he told an audience at Catholic University’s Columbus School of Law that he didn’t “think that … any of these cases that have been decided are the gospel.”
Three new Republican appointees have joined the court since Obergefell.
Instead, she merely contends that it “was wrong when it was decided and it is wrong today.”
Whether the court will grant review really boils down to whether there are four votes to take up the question.