US Supreme Court
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‘Not if, but when’: US Supreme Court considers longshot appeal to overturn same-sex marriage
The conservative-majority US Supreme Court is set to consider hearing an appeal to overturn the landmark decision, sparking fear across America.
The Supreme Court will consider hearing a longshot case to overturn the legalisation of same-sex marriage in America, sparking fears among the LGBTQ community that the landmark decision could meet the same fate as Roe v Wade.
At a closed-door meeting on Friday, US time, the justices are set to discuss whether or not to accept the appeal of former Kentucky county clerk Kim Davis, who repeatedly refused to issue marriage licences to same-sex couples in the wake of the blockbuster 2015 decision, Obergefell v Hodges.
Ms Davis’s staunch opposition has made global headlines. At one point, she was briefly jailed for refusing to issues marriage licences to any couples, regardless of their sexuality. While in 2023, she was ordered to pay a gay couple, David Ermold and David Moore, $US100,000 ($154,059) for denying them a marriage licence, arguing that to do so would violate her religious beliefs.
“The time has come (for a) course correction,” Ms Davis said in a recent filing. She has asked the nation’s highest court to both reverse the order requiring her to pay Mr Ermold and Mr Moore, and to overturn Obergefell v Hodges entirely.
Mathew Staver, founder and chairman of the religious legal group that is representing Ms Davis, Liberty Counsel, said that “if not” his client’s case, “it’s going to be another case”.
“In my view, it’s not a matter of if but when it will be overturned,” he said.
Four justices must vote to accept Ms Davis’s appeal in order for it to go ahead. If the 6-3 conversative majority court choose not to hear it – what legal experts have said is the more likely outcome – their denial could be announced as early as next week.
One of the court’s most conservative justices, Justice Samuel Alito, authored the June 2022 majority opinion that scrappedRoe v Wade, a ruling that had underpinned abortion rights in the US since the 1970s.
Discussing the decade-old same-sex marriage decision last month, however, Justice Alito said he was “not suggesting that the decision in that case should be overruled” – despite not agreeing with it.
“Obergefell is a precedent of the court that is entitled to the respect afforded by the doctrine of starce decisis (Latin for the principle of the importance of adhering to precedent),” he told a lecture in Washington DC.
Former Rowan County Clerk Kim Davis. Picture: AP Photo/Timothy D Easley
Though public support for marriage equality remains at a historic high, support among Republicans has slipped to 41 per cent, a Gallup poll showed in May – the lowest it has been since 2015.
In August, former first lady, secretary of state and Democratic presidential nominee, Hillary Clinton, predicted in an interview with the Raging Moderates podcast that the Supreme Court “will do to gay marriage what it did to abortion”.
“It took 50 years to overturn Roe v Wade. The Supreme Court will hear a case about gay marriage; my prediction is … they will send it back to the states,” Ms Clinton said.
“Anybody in a committed relationship out there in the LGBTQ community, you ought to consider getting married because I don’t think they’ll undo existing marriages, but I fear they will undo the national right.”
James Obergefell, the namesake of the same-sex marriage precedent, told CNN he is “very concerned” about the outcome of Friday’s meeting.
“At this point I do not trust the Supreme Court,” he said.
Speaking to The New York Times, Mary Bonauto – who represented Mr Obergefell at the Supreme Court – said she understood the concern of the LGBTQ community, but that marriage equality rights stood on stable ground.
“You have a precedent here (to maintain the decision), which affects our whole society,” Ms Bonauto said, noting the roughly 823,000 married same-sex couples in the US, raising close to 300,000 children.
“This is something that people need to be able to count on.”
Chief executive of Lambda Legal, an LGBTQ legal advocacy organisation, Kevin Jennings, similarly told The Times that “nothing in (Davis’s) petition before the court justifies creating a patchwork of state laws excluding some families from marriage licenses in the states where they live”.
The Supreme Court meeting comes at an increasingly fraught moment for the rights of LGBTQ Americans.
“Davis’s petition for a review (of Obergefell v Hodges) may seem like a longshot,” University of Newcastle Senior Lecturer in Criminology, Justin Ellis, wrote in The Conversation.
“But it illuminates a worrying trend in the US of conservative lawmakers trying to curtail LGBTQ+ rights in the states … The LGBTQ+ community finds itself under constant threat from an onslaught of co-ordinated online campaigns, in addition to constant legal and legislative action.
“And this directly impacts the capacity for safe LGBTQ+ participation in public life.”
On Thursday, the Supreme Court voted to uphold a decision that allows the Trump administration to require passport applicants to be identified on the document by their biological sex at birth, rather than their gender identity.
The President, after taking office in January, issued an executive order declaring that only two genders would now be recognised – male and female – ending recognition of a third gender, denoted by an “X” on US passports.
In line with the order, passports issued by the State Department are now required to state the biological sex – “M” or “F” – of their holder at birth.
The American Civil Liberties Union (ACLU) challenged the move and a district court judge ordered the State Department to resume issuing “X” passports to transgender and nonbinary people affected by the policy change.
An appeals court denied a Trump administration bid to overturn the district judge’s order, and the Justice Department asked the Supreme Court to issue an emergency stay.
In a brief unsigned order, the top court said the Trump administration’s passport policy could remain in place for now while the case proceeds in the lower courts.
“Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth – in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment,” the court said.
The three liberal justices on the nine-member court dissented.
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