Supreme Court won’t consider challenge to overturn same-sex marriage ruling

The Supreme Court shot down an attempt to overturn its 2015 decision finding a constitutional right to same-sex marriage, refusing to hear a challenge brought by a former county clerk in Kentucky who had refused to issue marriage licenses.

The justices rejected the case without comment.

Kim Davis, who was a clerk in Rowan County, had argued that forcing her issue the licenses violated her religious rights. Lower courts rejected her argument and ordered her to pay $100,000 to a gay couple whom she had refused.

She asked the justices to overturn the penalty as a violation of her religious rights, and also asked the high court to toss the Obergefell ruling itself, the 5-4 ruling where the court said governments had to recognize same-sex marriage under the Constitution’s 14th Amendment.

“Obergefell should be overturned because the Constitution makes no reference to same-sex marriage and no such right is implicitly recognized by any constitutional provision,” Ms. Davis told the justices in asking them to take the case.

The case had been seen as a long-shot attempt by Ms. Davis.

Her opponents in the case, the gay couple and their lawyers, the Institute for Constitutional Advocacy and Protection, said Ms. Davis waited years before raising her major arguments, and that made it a bad vehicle for pondering the fate of Obergefell.

Besides, they said, the landmark decision has been relied upon by couples and governments for more than a decade.

“Overruling Obergefell could call into question the constitutional status of existing same-sex marriages and disrupt the lives of those who aspire to, plan their affairs around, and benefit from same-sex marriage,” the lawyers wrote.

Ms. Davis had become the face of resistance to the decision, refusing to issue marriage licenses to same-sex couples so as not to violate her Christian faith and state law, which at the time still recognized marriage as a union between a man and a woman.

She would go on to spend six days in jail for her actions and faced the lawsuit from David Ermold and David Moore, the couple. They won a jury trial and were awarded $100,000 for emotional distress. The court also ordered Ms. Davis to pay an additional $260,000 in attorney fees.

Ms. Davis, in her appeal to the high court, had argued she had immunity from the lawsuit.

She also asked the court to toss decades of court decisions recognizing a legal theory known as “substantive due process.”

Some conservatives have argued that the courts have fabricated rights using the doctrine — in this case, a constitutional right to marry.

Ms. Davis’ lawyers, in their brief, called substantive due process a “legal fiction” that should be tossed — and Obergefell should go with it.

Justice Clarence Thomas has argued that the due process required by the Constitution applies to procedures the law must go through before depriving someone of life, liberty or property.

The doctrine was used for decades to support Roe v. Wade, the 1973 case that gave women a national right to abortion. The justices overturned that landmark decision in 2022, returning jurisdiction over abortion to the states.

Liberty Counsel, the evangelical ministry representing Ms. Davis, had pointed to the abortion precedent in supporting her request to overturn same-sex marriage.

The case is Kim Davis v. David Ermold and David Moore.

It would have taken four justices to vote in favor of hearing the dispute for oral arguments to have been granted.