Earlier this year, former Kentucky county clerk Kim Davis was ordered to pay $100,000 after losing a discrimination lawsuit to the two gay men whose marriage license she famously refused to sign in 2015.
Davis was hit with the six-figure sum in September after a federal jury awarded David Ermold and David Moore $50,000 each. The two sued Davis after she famously refused to give them a marriage license nearly a decade ago, before the Supreme Court ruling on Obergefell v. Hodges, and the wholehearted adoption of gay ‘marriage’ became the bad law of the land.
Now, she’s appealing that ruling and arguing that, like Roe v Wade, Obergerfell should be overturned. Liberty Counsel, who is representing her, explained in a press release:
On Monday, we filed our Opening Brief with the Federal Court of Appeals on behalf of Kim Davis. This case has the potential to overturn the Supreme Court’s wrongly decided 2015 Obergefell marriage decision…we intend to take this case all the way to the U.S. Supreme Court, where we will argue that the wrongfully decided Obergefell case should be overturned.”
Even if the Sixth Circuit doesn’t hear the case, it may still wind up at the Supreme Court. While the highest court in the land declined David’s appeal in 2020, that was before the addition of Amy Coney Barrett to the ranks and before they had (in theory) a conservative majority.
Pro-LGBTQ activist news site Jezebel was aghast at the news, lamenting the possibility of this case doing some actual damage:
In a brief to the Sixth Circuit Court of Appeals, (Davis’) lawyers argue that “Obergefell should be overturned for the same reasons articulated by the court in Dobbs”—mainly that it “was wrong when it was decided and it is wrong today because it was based entirely on the ‘legal fiction’ of substantive due process, which lacks any basis in the Constitution.”
This is a regurgitation of Justice Clarence Thomas’ concurrence in the Dobbs case that overturned Roe in which he argued that the court should overrule not only marriage equality but also the right to same-sex intimacy (Lawrence v. Texas, 2003) and the right for married couples to use birth control (Griswold v. Connecticut, 1965). Thomas called these substantive due process decisions “demonstrably erroneous.”
While no other Justice joined that writing, Justices Thomas, Samuel Alito, and John Roberts all dissented in Obergefell, which was a 5-4 ruling. It’s well within the realm of possibility that, on this 6-3 court, there are four votes to hear a marriage equality case and five votes to overturn Obergefell.
Notably, at the time, her refusal to sign garnered her no support from Russell Moore, then the ERLC head and scurrilously nuanced debutante, who was quick to chastise her for her decision and made it very clear that she should have resigned from her position rather than continue to faithfully execute the requirements of her office.
