Supreme Court to Consider Appeal Challenging Marriage Equality Ruling
Like a pendulum that swings slowly but inevitably through history, America’s highest court has a way of revisiting what many consider settled law. The architects of our Constitution understood that societal change often moves in cycles, with each generation reconsidering the judicial creativity of the last. For conservatives who’ve watched the Court correct course on everything from gun rights to administrative overreach, there’s a familiar rhythm to this dance between judicial restraint and activism.
Ten years have passed since five justices discovered a constitutional right to same-sex marriage hidden somewhere in the Fourteenth Amendment’s penumbras. In that decade, over 823,000 same-sex couples have married, raising some 300,000 children together. These families have built lives around what the Court declared in Obergefell v. Hodges, even as conservative legal scholars have consistently argued the decision represents precisely the kind of judicial overreach the Founders warned against.
The Supreme Court’s composition has shifted considerably since 2015. Where once stood a slim majority willing to create new constitutional rights from whole cloth, now sits a Court increasingly committed to originalist interpretation—and honestly, it’s about time. Justice Clarence Thomas, writing in his Dobbs concurrence, made clear that substantive due process decisions like Obergefell rest on shaky constitutional ground. Many conservatives quietly share his view, even if political calculations keep them silent. (Trust me, they do.)
This Friday, behind closed doors, the justices will consider whether to hear an appeal that could crack open the Obergefell question once again. Kim Davis, the Kentucky county clerk who became a lightning rod in 2015 for refusing to issue marriage licenses to same-sex couples, owes $360,000 in damages after losing her religious liberty defense in lower courts. Her appeal doesn’t just seek financial relief—it challenges Obergefell itself as “egregiously wrong” and “deeply damaging.”
From Liberty Counsel, representing Davis:
Like the abortion decision in Roe v. Wade, Obergefell was egregiously wrong from the start. This opinion has no basis in the Constitution.
The parallels to Roe aren’t merely rhetorical. Both decisions relied on creative constitutional interpretation rather than text or tradition. Both imposed social policy from the bench rather than allowing democratic processes to work. Ask yourself: if the Court can just invent rights whenever five justices feel like it, why do we even have a Constitution? The Court’s willingness to overturn Roe after nearly fifty years sent a clear message: precedent alone doesn’t sanctify constitutional error.
Yet here’s where principle meets politics, and conservatives face an uncomfortable truth. Public support for same-sex marriage has reached 69%, according to Gallup. Twenty-six states have trigger laws ready to restrict marriage equality if Obergefell falls, but implementing them would likely spark the kind of backlash Republicans faced after Dobbs. The 2022 midterms should have been a red wave; instead, abortion politics turned them into a trickle.
The Davis case presents the Court with what lawyers call a “vehicle”—a pathway to reconsider broader constitutional questions. Whether four justices vote to hear it remains uncertain. Justice Thomas would likely welcome the opportunity, but his colleagues may prefer waiting for a case with cleaner facts or better timing. Here’s what I think: they’re watching the political winds as much as the legal arguments. The federal Respect for Marriage Act, signed in 2022, complicates matters by ensuring federal recognition regardless of state law.
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