The Supreme Court is scheduled to hear a challenge to same-sex marriage during its private conference day early next month.
The case stems from a Kentucky woman, Kim Davis, who was jailed for several days in 2015 after she refused to issue a marriage license to a gay couple.
She brought the case to the Supreme Court in July, and the justices will discuss whether or not they want to hear oral arguments in the case during this term.
Typically, the Supreme Court does not grant review for a case without considering it for several conferences, and this is the first time Davis’ case will be examined by the justices. But there’s still a possibility that the case could make its way formally before the justices in oral arguments if there are four votes to take up the matter — and even more votes to overturn the precedent, Obergefell v. Hodges, which legalized same-sex marriage in 2015.
The closed-door meeting will consist of the justices considering if they want to add the case to this term’s docket. If granted, it would be added to the schedule for oral arguments and a decision sometime later in the court’s term, which extends until June 2026.
Davis’ case
Davis was the sole authority that was responsible for issuing marriage licenses in Rowan County, Kentucky, on behalf of the state. When she refused to issue a license for a gay couple on her personal religious grounds, she was jailed for several days.
Davis is appealing a damages verdict of $100,000 for emotional damages and $260,000 for attorneys’ fees. Her case before the Supreme Court argues that Obergefell infringes on her religious First Amendment right.
She’s arguing that same-sex marriage under the 14th Amendment’s due process clause is “egregiously wrong” and it should be treated like the court’s 2022 abortion decision, which handed the power back to individual states.
In 2019, Davis petitioned the court to dismiss the lawsuit against her, but the justices declined to hear her case.
What the justices could say
While the Supreme Court has refused to take up Davis’ case in the past, it remains unclear how the court will respond to the same-sex marriage issue in 2025. Given the justices overturned the landmark case Roe v. Wade in 2022, it’s sparked concern among the LGBTQ+ community and advocates that the justices could unravel the legalization of same-sex marriage.
However, several of the court’s conservative justices remain on the bench. Conservative Justices Clarence Thomas and Samuel Alito both concurred with the 2019 decision to not take up Davis’ case. Still, the politics of the court may have shifted in the years since.
In the 10 years since the original Obergefell decision, three conservative justices have been added to the bench by President Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. It’s a change for the court that’s concerned Democrats for years, increasingly so after the abortion decision.
In the court’s 2022 Dobbs v. Jackson Women’s Health Organization decision, which took away the constitutional right to an abortion, Thomas suggested in his opinion that the court should “reconsider” some of its past rulings, including same-sex marriage.
Where the case stands
If the justices were to overturn Obergefell, existing marriages would stay intact. Former President Joe Biden signed a congressionally-passed measure to guarantee federal recognition of same-sex and interracial marriages in 2022. It was passed after the Dobbs decision as concern grew about more changes to previous cases.
Even if the justices struck down the nationwide right for same-sex marriage, it’s a long way off. On Nov. 7, the justices will consider whether or not to even hear Davis and her challengers out this term. A decision about if the court will add the case to its docket could come as soon as Monday, Nov. 10.