U.S. Supreme Court justices are scheduled to vote Nov. 7 on whether to take up a challenge to the court’s 2015 ruling requiring states to accept same-sex marriages.
However, whatever decision the justices make, it may not be issued today.
Just because the justices are holding what is called a judicial conference on Nov. 7 to consider the petition in Davis v. Ermold, that does not mean the court will necessarily decide on that date.
Sometimes the court fails to decide on the appointed date and schedules a future conference on the petition. In high-profile, controversial cases, it sometimes holds several conferences before making a decision.
If the court makes a decision Nov. 7, it would normally release the ruling the following Monday—in this case, Nov. 10—but sometimes it makes the decision public the same day.
At the same time, the high court struck down the federal Defense of Marriage Act, a 1996 law that defined marriage as the union between one man and one woman, and allowed states to refuse to accept same-sex marriages recognized under other states’ laws.
Days after the Obergefell decision, David Moore and David Ermold sought a marriage license from Davis.
She declined, saying she was acting “under God’s authority” and advised the couple to seek a marriage license in another county.
The men sued for civil rights violations, seeking damages.
A federal district court issued an order in a separate case directing Davis to issue marriage licenses.
Davis took the position at the time that her office would not issue any marriage licenses “until the state passed legislation to grant her an accommodation,” the ruling said.
While Davis’s appeal of the court order was pending, Kentucky enacted a law allowing clerks’ names to be left off marriage licenses. Davis accepted this and asked to dismiss her appeal.
But the Sixth Circuit declined to dismiss the appeal because the plaintiffs were seeking damages.
The legal proceeding went on for years before a federal jury awarded $100,000 in total compensatory damages to Moore and Ermold.
The Sixth Circuit did not disturb the jury verdict and held that Davis was not entitled to immunity from suit as a government official, the ruling said.
In her petition, Davis specifically asked the Supreme Court to overturn the Obergefell ruling.
Three Supreme Court justices who dissented in Obergefell—Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito—still serve on the high court, and four justices are needed to get the court to grant a petition and agree to hear the case.
“The fundamental right to marry does not include a right to make a state change its definition of marriage,” Roberts wrote. “And a state’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.”
The chief justices described the court majority as “five lawyers” who shut down the debate, “stealing this issue from the people.”
The Obergefell decision was codified into federal law in December 2022.
That same year, Thomas wrote that the Supreme Court should “reconsider” major “substantive due process precedents,” including Obergefell.
Substantive due process protects those personal and relational rights, as distinguished from economic rights, that are not explicitly mentioned in the Constitution’s Bill of Rights and that are deeply rooted in U.S. history and tradition, as seen in the context of evolving social norms.
Dobbs, which overturned Roe v. Wade (1973), held that the Constitution does not guarantee a right to abortion and returned the regulation of the procedure to the states.
Staver told The Epoch Times in June that he believes the Obergefell precedent is on shakier ground than Roe v. Wade because “it invented same sex marriage out of thin air with zero precedent and zero basis in the Constitution.”
“It’s not a matter of if. It’s a matter of when. It’s going to go away,” he said.
If the precedent is overturned, states would be free to decide whether they will accept or discontinue same-sex marriage, he said.
