The Unwarranted Freakout Over the Cert Petition Seeking Overturning of the Same-Sex Marriage Right
On Monday, the Supreme Court denied a certiorari petition by Kim Davis, the Kentucky county clerk who refused to issue licenses to same-sex couples. In that petition, Davis had asked the Court to overrule Obergefell v. Hodges, which found a constitutional right to same-sex marriage. There was never any chance that the Court was going to grant the petition, mostly because Davis had waived the argument for reversing Obergefell by not presenting it to the lower courts. Nonetheless, the media treated this non-event as big news. For example, Supreme Court Denies Request to Revisit Same-Sex Marriage Decision was the banner headline at the top of The NY Times website for much of the day.
To be fair, the actual Times article was excellent. It explained that a cert denial is not a decision on the merits, that the Court was highly unlikely to grant because of the procedural posture of the case, and that there does not appear to be much of an appetite on the current Court for overruling Obergefell. Yes, Justice Thomas called for that in his Dobbs concurrence, but the Times article points to indicia why the other conservatives are unlikely to go along.
To be sure, the article doesn't mention Justice Alito. Would he be too embarrassed to vote to overrule Obergefell because of his insistence in Dobbs that abortion is unique and that no other substantive due process cases were threatened by that decision? Maybe not, but even then, that's only two votes to overrule Obergefell.
So, will the tempest in the teapot that was the Davis petition have any lasting impact? Probably not. The surrender of enough Senate Democrats to end the government shutdown, followed by the release of some Jeffrey Epstein emails fingering Donald Trump have already shoved the will-SCOTUS-revisit-same-sex-marriage story out of the headlines. But that doesn't mean the evanescent spotlight will have no impact.
One possible effect is to mobilize supporters of same-sex marriage, especially in states that did not legalize it independently of the SCOTUS ruling--which is to say most states. Insofar as the Davis petition made people aware of the possibility that the Supreme Court might overrule Obergefell, it could and should energize SSM supporters to organize to obtain state-level guarantees by legislation or state constitutional amendments.
However, insofar as legal non-experts were paying attention to the Davis story only casually--for example, by seeing headlines but not reading full news articles--the cert denial could have the opposite effect. Oh, such a non-expert might think, even the very conservative Supreme Court has reaffirmed the constitutional right to same-sex marriage, and unanimously, no less, so I can rest easy.
Such complacency might in fact be warranted if, as I suspect, there are no more than two votes on the Supreme Court to reverse Obergefell, but the Davis cert denial is in no way a justification for that conclusion. The reason there probably isn't any appetite for revisiting Obergefell on the part of the Supreme Court is that a majority of the Justices have made their peace with it.
However, the key words in the foregoing paragraph are "might" and "probably." The five conservatives who comprised the Dobbs majority (treating the concurrence in the judgment of Chief Justice Roberts separately) wrote or joined an opinion that articulated a test for unenumerated rights--history and tradition only--that would result in the rejection of a right to same-sex marriage as an original matter. The Dobbs opinion then offered a distinction--abortion uniquely results in the death of a human life or potential life--that is a bit of a non sequitur as an explanation for why stare decisis didn't preserve a right to abortion but does preserve rights of contraception, same-sex marriage, etc.
In saying that I don't expect this Court to overrule Obergefell, I'm saying that I don't think the Justices will take Dobbs to the logical conclusion to which Justice Thomas thinks it leads--not that they have a reason of principle not to do so. To be sure, there is concrete reliance on Obergefell, but it's easy enough to imagine an aggressively conservative Court overruling it except for existing marriages.
There is also the possibility of an even more conservative Supreme Court. That won't happen for a while. The oldest Justices (Thomas at 77 and Alito at 75) are its most conservative, so we would not see a shift to the right until a Justice to their left retires or dies. Justice Sotomayor is 71. Chief Justice Roberts is 70. Justice Kagan is 65. I wish them all good health and long life, but one cannot discount the possibility of unexpected vacancies filled by far-right Justices nominated by Donald Trump or a Republican successor.
Thus, complacency by supporters of same-sex marriage would be imprudent. I therefore hope that the foolish publicity given to the Davis cert petition ends up catalyzing action at the state level and more generally, even as I worry that the misleading signal sent by the Court's rejection of the petition will have the opposite effect.
Finally, the big winner here is the conservative Supreme Court. At no cost, it generated headlines that make it look less conservative than it is, thus giving it the breathing room to continue to give the green light to most of the far-right (and otherwise awful) Trump agenda.
--Michael C. Dorf