From Kentucky county clerk Kim Davis
LISA KEEN | Keen News Service
lisakeen@mac.com
A case asking the U.S. Supreme Court decision to reverse its 2015 decision striking down state bans on same-sex marriage is not keeping Lambda Legal Senior Counsel Jenny Pizer awake at night.
She has two reasons: One, because Congress passed and then-President Biden signed the Respect for Marriage Act in 2022, prohibiting any state from denying recognition of a same-sex or interracial marriage licensed in another state.
And two, because reversing Obergefell v. Hodges has not been a top priority for President Trump or many conservatives who are driving his second term agenda.
But there are also two reasons to be concerned the court might take up the appeal this session. Justices Clarence Thomas and Samuel Alito have stated they would like to overturn Obergefell. They would need to convince only two more justices to have the four votes necessary to take up the appeal.
But, says Pizer, a 30-year veteran of Lambda’s fight for marriage equality, the court’s other four conservative justices are mindful that they would need a fifth vote to overturn Obergefell.
And, just five years ago, Thomas and Alito agreed with the rest of the court to reject a petition much like the one filed again this session. They said the case, Davis v. Ermold, did “not cleanly present” issues of religious freedom they saw as important to marriage equality for same-sex couples.
Nevertheless, county clerk Kim Davis of Kentucky has filed yet another petition, also Davis v. Ermold, which was docketed by the court on Aug. 1.
David Ermold and David Moore are the gay couple who were refused a marriage license by Davis following the Obergefell decision. Davis said at the time she could not issue the license due to her religious beliefs. A federal jury in 2023 awarded Ermold and Moore $100,000 in damages for Davis’ refusal to issue the license.
In her latest petition, Davis poses three questions: Whether the First Amendment right to free exercise of religion should protect Davis from paying the damages; whether the county should pay the damages for Davis’ act as county clerk, rather than Davis pay as an individual; and, whether “Obergefell v. Hodges and the legal fiction of substantive due process, should be overturned.
A three-judge panel of the Sixth Circuit U.S. Court of Appeals (which included two Clinton appointees and one Trump appointee) ruled that Davis had made “the same” arguments before, seeking to have the county pay the damages for the former county official. It ruled that Davis’ action in refusing the couple a marriage license was the act of a government official and, thus, could not be protected under the Free Exercise clause.
“It’s hard to say for sure what will happen,” says Pizer, “but for now, I’m not staying up all night with anxiety that our marriages will be dissolved and we’ll not be able to marry in future.”
According to the UCLA’s Williams Institute, there are 823,000 married same-sex couples in the U.S. today, 591,000 of whom married following the 2015 Obergefell decision.
The Supreme Court docket has placed Davis v. Ermold on the agenda for discussion at the court’s Sept. 29 private conference.
An attorney for the gay couple has asked the court for an extension until Oct. 8 to file a response to Davis’ petition. As of deadline, the court had not responded to that request. n
© 2025 Keen News Service. All rights reserved.