Is the era of Obergefell coming to an end?
Returning to Kim Davis, and 10 years of gay marriage
The year is 2015, Fetty Wap is blowing up music charts, a particular dress was dividing the internet, and 195 countries signed onto the Paris Climate Agreement. But the most memorable thing from the year, at least in the US, happened that summer, when Obergefell v. Hodges was decided on June 26.
Obergefell v. Hodges was the landmark case that enshrined marriage equality between straight and gay couples, allowing same-sex unions across the country, under the 14th Amendment.
The ruling “affirms what millions across this country already know to be true in their hearts: our love is equal,” said lead plaintiff Jim Obergefell, who challenged Ohio's ban on same-sex marriage.
Obergefell filed suit because he wasn’t allowed to add his name to his late husband John Arthur's death certificate after Arthur died from ALS.
“They ask for equal dignity in the eyes of the law,” then-Supreme Court Justice Anthony Kennedy wrote 10 years ago, in the Obergefell v. Hodges majority opinion. “The Constitution grants them that right.”
At the time the decision was made, 12 states had outright banned gay marriage, with a patchwork of legality across the rest of the country.
Now, just over 10 years later, the ruling may sit in the hands of the Supreme Court again.
Not long after Obergefell was decided, in August 2015, then Kentucky county clerk Kim Davis refused to certify the marriage licenses of gay couples, eventually serving six days in jail and ending up on the hook for $100,000 in damages and another $260,000 in attorney fees.
She is now petitioning the Supreme Court in the face of that, claiming that not only is she not liable for damages due to her religious beliefs and protections from the First Amendment, but also that the original Obergefell ruling in 2015 was wrong.
“The mistake must be corrected,” wrote Davis's attorney, Mathew Staver, in the petition. He calls Justice Anthony Kennedy's majority opinion in Obergefell “legal fiction.”
Not only is this the first time that the Supreme Court has been directly asked to overturn the watershed case, but it comes during a wave of anti-marriage equality sentiment and a movement from many states to restrict or ban it altogether.
“Obergefell was wrong when it was decided and it is wrong today,” Davis’s lawyers at the right-wing legal firm Liberty Counsel argue in the petition, calling it a “mistake [which] must be corrected.”
Others have claimed that due to her role as a county clerk, she had a responsibility beyond her personal religious beliefs.
“When you do a job on behalf of the government — as an employee or a contractor — there is no license to discriminate or turn people away because they do not meet religious criteria,” James Esseks, director of the American Civil Liberties Union LGBT & HIV Project, said in a statement. “Our government could not function if everyone doing the government's business got to pick their own rules.”
According to the ACLU, there have been 604 anti-LGBTQ+ bills introduced in 2025. This has been a part of a wider mission on the right to “divide and conquer,” first focusing on trans rights and then refocusing on marriage equality. Media Matters for America (MMFA) has a fantastic timeline of events, starting almost right after Obergefell and the 2016 North Carolina trans bathroom ban.
“In the interim, right-wing media focused their attacks on transgender people, materializing into a yearslong culture war and now a presidential administration with an unabashed anti-trans agenda,” Henry wrote for MMFA this week. “Confident that they have put transgender people on their back foot, right-wing media are mobilizing against gay marriage once again, a fight for which they have years of practice.”
Legislators in five states — Michigan, Idaho, Montana, North Dakota, and South Dakota — introduced resolutions to petition the Supreme Court to overturn Obergefell, and while each of those resolutions failed to pass Senate chambers, it does mark a shift in sentiment.
Though this is an issue at the government and policy level, at the individual level, opinions on marriage equality are largely settled. A 2022 Pew Research study reported that 61% of Americans support marriage equality, while only around 37% oppose it. Nearly every demographic, across racial and education lines, has a majority that supports gay marriage, with religious and political affiliation being the only indicators that show a meaningful shift in opinion. Public opinion has nearly flipped since 2004, when about double the Americans opposed gay marriage than supported it.
There are still concerns, especially given the Supreme Court’s decision on Roe v. Wade in 2022. During the oral arguments, Justices Samuel Alito and Clarence Thomas expressed concerns about the case and a willingness to overturn it.
“Davis may have been one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last,” wrote Thomas on behalf of the two justices. “Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws.”
At the time of writing, there are an estimated 823,000 married same-sex couples in the U.S., according to the Williams Institute at UCLA Law School. While overturning Obergefell wouldn't end their marriages, thanks to the 2022 Respect for Marriage Act, it’s still important to understand the far-reaching implications of a ruling like this.
Davis herself may not have much of a claim, consistently being turned away at smaller courts, but the Supreme Court’s “shadow docket” does leave room for ambiguity.