The U.S. Supreme Court is scheduled to consider on November 7 whether it will hear a challenge to same-sex marriage
The Supreme Court is set to decide on Friday, Nov. 7 during its private conference whether to take up Kim Davis’ appeal involving same-sex marriage. Typically, the justices do not agree to hear a case until it has appeared in at least two consecutive conferences; this marks the first time Davis’ petition will be discussed. If the court ultimately opts not to hear the case, that denial could be announced as early as Monday, Nov. 10.
As previously reported by SCOTUSblog on Aug. 13 (the basis for this summary), the dispute traces back to 2015, shortly after the Supreme Court held in Obergefell v. Hodges that same-sex couples have a constitutional right to marry. Kim Davis, at the time a county clerk in Kentucky, became the focus of national attention when she declined—on religious grounds—to issue a marriage license to a same-sex couple, David Moore and David Ermold. Issuing licenses, including marriage licenses, was part of her official duties. After the Obergefell ruling, Kentucky Governor Steve Beshear instructed every county clerk to “license and recognize the marriages of same-sex couples.”
Even after a county attorney informed Davis that she was legally obligated to issue marriage licenses to same-sex couples, she instead stopped issuing marriage licenses altogether—to anyone, regardless of sexual orientation. During this halt, she refused to issue Moore and Ermold a license. She told them she was acting “under God’s authority” and suggested they seek a license in another county.
Moore and Ermold sued Davis, asserting that she violated their constitutional right to marry. In a separate lawsuit concerning her refusal to issue licenses to any couple, U.S. District Judge David Bunning ordered Davis to resume issuing licenses to both same-sex and opposite-sex couples. But when Moore and Ermold returned to the clerk’s office after the judge’s order, Davis and her staff again refused to provide the license.
In 2016, Davis’ office resumed issuing marriage licenses after the Kentucky Legislature passed a law allowing clerks who objected to same-sex marriage to have their names and signatures removed from the forms. Moore and Ermold’s case continued, and in 2023 a jury awarded each of them $50,000 in damages.
Davis appealed to the U.S. Court of Appeals for the 6th Circuit, arguing—among other points—that she could not be held liable because issuing the marriage license would have violated her right to free exercise of religion.
Earlier this year, the 6th Circuit rejected her appeal. The court ruled that while Davis is entitled to First Amendment protection as a private citizen, she was acting in her official capacity as a government employee when she denied Moore and Ermold a license, and that conduct is not shielded by the First Amendment. The court noted that Obergefell recognized that “many people ‘deem same-sex marriage to be wrong’ based on ‘religious or philosophical premises.’” However, it continued, “those opposed to same-sex marriage do not have a right to transform their ‘personal opposition’ into ‘enacted law and public policy.’” As the court wrote, “The Bill of Rights would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates.”