Back in 2015, the United States legalised same-sex marriage nationwide after a landmark case was narrowly passed through the Supreme Court. A decade on, this ruling is being challenged for the first time.
The 2015 ruling came about after an Ohio-based couple, James Obergefell and John Arthur, challenged the state’s refusal to recognise their legal marriage. Arthur had been diagnosed with ALS, and as his death approached, the couple wanted their marriage and the rights that came with it rightfully recognised.
In a slight majority, Justice Anthony Kennedy of the Supreme Court declared that same-sex couples have “equal dignity in the eyes of the law” and issued a blanket ruling across the country that legalised same-sex marriage, rather than the state-based laws held previously. This ruling is often referred to as Obergefell, after the plaintiff.
The precedent of Obergefell is now being questioned in a case brought forward by Kim Davis, a former Kentucky clerk who was jailed for six days after refusing to issue marriage licenses for same-sex couples in 2015.
Davis stated her refusal was based on religious grounds. However, she was ordered to pay $100,000 USD (approx $153,535.28 AUD) in damages and $260,000 USD (approx $399,191.73 AUD) in attorney fees.
Last month, Davis filed a petition for the case to be seen by the higher court in which she argued that there should be a First Amendment (a law intended to protect fundamental rights, including freedom of religion, speech, press, assembly, and petition) protection for exercising her religious beliefs. Davis also claimed that the higher court’s 2015 decision was “egregiously wrong”.
“If there ever was a case of exceptional importance,” Davis’ attorney Mathew Staver said in the petition, per ABC News.
“The first individual in the Republic’s history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it.”
Although this is the first time that the 2015 ruling has been officially challenged, many legal experts believe that her bid is a bit of a long shot.
William Powell, the attorney of David Ermold and David Moore — the couple that Davis refused to issue a marriage license in 2015 — doesn’t believe that the petition will go further to overturn Obergefell.
“Not a single judge on the US Court of Appeals showed any interest in Davis’s rehearing petition, and we are confident the Supreme Court will likewise agree that Davis’s arguments do not merit further attention,” said Powell in a statement to ABC News.
Plus, according to a federal appeals court, Davis “cannot raise the First Amendment as a defence because she is being held liable for state action, which the First Amendment does not protect”.
However, if Davis’ petition does see Obergefell be overturned, legal experts state that existing same-sex marriages would not be invalidated due to the 2022 Respect for Marriage Act.
However, in a climate where conservatism is on the rise in the US, the prospect of Davis being successful in her legal efforts is a scary one for LGBTQIA+ people around the country. According to AXIOS, 32 states currently have constitutional and/or legislative bans on marriage equality that are not enforceable because of Obergefell.
In March, it was reported that at least nine US states were considering a move to tell the Supreme Court to overturn the Obergefell decision. While these efforts would not have direct sway, it’s a pretty rough message to be sending to the many LGBTQIA+ people living in these states and across the US.
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