'Very messy': Experts predict Supreme Court's next same-sex marriage action

The United States Supreme Court has agreed to hear a case that brings same-sex marriage back into the national debate, featuring a familiar face for those who have followed this issue over the past dozen years. However, one retired Harvard constitutional law scholar thinks he knows what will unfold once the high court rules.

For the past ten years, same-sex couples have had the same freedoms as straight couples, including access to civil marriage and the legal protections that come with it.

Kim Davis, a former Kentucky county clerk who spent six days in jail after refusing to issue marriage licenses to same-sex couples, is now appealing a verdict that requires her to pay $100,000 in restitution and $260,000 in attorneys' fees to the couple she targeted. Davis claimed that issuing a marriage license to a same-sex couple violated her religious beliefs.

In her filing, Davis called the landmark case Obergefell v. Hodges “egregiously wrong.” “The mistake must be corrected,” said Davis’ lawyer, Mathew Staver, in the filing.

In other cases involving public officials refusing to do their jobs for religious reasons, legal decisions have been mixed. For example, a baker who refused to bake a cake for a gay wedding won her case. However, in a case involving a Minnesota pharmacist who refused to sell Plan B or “the morning after pill,” the courts ruled that the pharmacist could deny the medication as long as another pharmacist was available to dispense it.

Former constitutional law professor Laurence Tribe pointed to Davis’s case and a recent USA Today article, which cited the 2022 passage of the Respect for Marriage Act. The law, which passed Congress with bipartisan support, requires all states to recognize same-sex and interracial marriages.

"It wouldn’t surprise me if SCOTUS took up this case and ruled (wrongly) for Kim Davis on religious freedom grounds but declined (rightly) to consider her outlandish request that Obergefell be overturned," said Tribe on Bluesky.

Georgia law professor Anthony Michael Kreis similarly pointed out, "There’s also federal statutory protections on the books. And it would be a very messy right to dismantle."

"We certainly know that [Justices Samuel] Alito and [Clarence] Thomas would gladly walk Obergefell back," he added. "But, the Court as it is comprised of now, almost surely doesn’t have the appetite. Anything is possible, but [Justices Amy Coney] Barrett and [John] Roberts (I suspect [Brett Kavanaugh] Kav too) aren’t going to bite. Don’t trust them. But let’s be good legal realists."

Lawyer and journalist Imani Gandy authored a thread where she explained why she is less optimistic.

"We've had a decade of marriage equality—and that may be all we get," said Gandy. "Just like I warned about Roe for years, I'm warning you now: Obergefell is absolutely on the chopping block. The same 'history and tradition' test that killed abortion rights? That's their blueprint for same-sex marriage."

Even if Davis is unsuccessful, Gandy thinks "Christian conservatives will find another one. Don't let anyone tell you the polling is too strong. 61% of Americans supported abortion rights too. This Court doesn't care about public opinion. The votes are there. Thomas and Alito have been gunning for Obergefell since day one. Gorsuch, Kavanaugh, and Barrett all signed onto Dobbs using the framework they'll use against marriage equality. Roberts literally read his Obergefell dissent from the bench—he's THAT mad about it. That's 6 votes."