On June 26, 2015, the United States Supreme Court made a historic decision that would come to be heralded as one of its most significant verdicts: Obergefell v. Hodges. Striking down heteronormative definitions of marriage from Kentucky, Michigan, Ohio and Tennessee, the court ruled in favor of the plaintiffs that bans on same-sex marriage violated the 14th Amendment and were therefore unconstitutional.
By striking down the unconstitutional prohibitions on same-sex marriage held by many state governments, the court enshrined the dignity and fundamental human rights of queer people and their spouses into American law. Now, however, that same landmark precedent is in serious danger of being ripped away.
The lead plaintiff in the original case, James Obergefell, met his spouse, John Arthur, over two decades before the case was decided. They “started a life together, establishing a lasting, committed relation,” said Justice Anthony Kennedy, a 1987 Reagan nominee authoring the majority opinion in the original case despite his otherwise mostly moderate-conservative voting record. However, Arthur was later diagnosed with ALS, a fatal muscle condition with no known cure, and it became difficult for him to move. The two married in Maryland, where same-sex marriage was legal, inside a plane specially designed for medical transportation as it sat at an airport in Baltimore.
Arthur passed away three months later. However, the law in the couple’s home state of Ohio prevented Obergefell from being registered as the surviving spouse on Arthur’s official death certificate. “By statute,” wrote Kennedy, “they must remain strangers even in death, a state-imposed separation” that Obergefell said was “hurtful for the rest of time.”
The court ruled in favor of Obergefell and the dozens of other plaintiffs who had joined his case, agreeing that states did not have the power to simply refuse to license the marriages of same-sex couples. It also held that “all states must…recognize such a marriage if it was lawfully licensed and performed in another state,” says Justia Law.
“From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage,” noted Kennedy. “Far from seeking to devalue marriage, the petitioners [plaintiffs] seek it for themselves…nature dictates that same-sex marriage is their only real path to this profound commitment.”
Fast forward to today, however, and Jason Lemon of Newsweek reports that the same court (albeit occupied by several more recently appointed justices) plans to hold a “private conference” on Nov. 7 of this year to determine whether it should hear a challenge intended to overturn that very case.
The challenge in question comes from Kim Davis, a former county clerk in Kentucky who spent six days in jail in September 2015 for contempt of court after she attempted to illegally deny marriage licenses to queer couples despite the laws codified by the Obergefell verdict. Davis’s attorney raises “religious objections” to Obergefell, calling it “egregiously wrong” and “deeply damaging.”
Davis’s challenges have been repeatedly rejected by other courts, according to Lemon. One dismissed her argument that she should be protected by the First Amendment because “state[-level] actions,” which she is being held liable for, are not protected under free speech laws – so her reasoning “fail[s] under basic Constitutional principles.” She even made another appeal attempt to the Supreme Court in 2020, which was ultimately denied.
“The deliberation over whether to revisit the court’s 2015 Obergefell decision comes as conservative legal advocates, some Republican lawmakers and advocacy groups renew efforts to limit or roll back federal protections for same-sex marriage,” writes Lemon. “Recent decisions, including the 2022 overturning of Roe v. Wade…have fueled concerns that other landmark decisions on civil rights could also be revisited.”
It remains uncertain, however, whether the Supreme Court will actually even grant review in this case, let alone ultimately decide in favor of Davis. Lemon cited Trump-appointed Justice Amy Coney Barrett’s description of marriage rights as “fundamental,” and her comments to CBS News that “[the law is] not just an opinion poll about whether the Supreme Court thinks something is good or whether the Supreme Court thinks something is bad.” He also cited former federal prosecutor Neama Rahmani, who stipulated that Davis’s case hinges “more on her failure to follow the law than any new constitutional challenge.”
At least four of the nine justices would need to agree to grant review in order for Davis’s appeal to move forward. The court is expected to release its decision on whether it will hear the appeal shortly after its conference on Nov. 7. Until then, Obergefell–and quite possibly the future of human rights for queer people in the United States (including many members of the Drew community who identify as queer and trans right here in Madison)–continues to hang in the balance.
Sabr Keres-Siddiqui is a junior majoring in political science and double minoring in journalism and sociology.