The next wave of litigation involving same-sex marriage is now underway. In the wake of the Supreme Court’s ruling last June striking down same-sex marriage bans across the nation in Obergefell v. Hodges, various individuals have been claiming a constitutional right to continue resisting same-sex marriage. At the core of these cases is what Justice Thomas in Obergefell described as an “inevitable” conflict between the assertions of religious liberty by those who oppose same-sex marriage and the Court’s recognition of a constitutional right to same-sex marriage.
Kim Davis, the county clerk for Rowan County, Kentucky, opposes same-sex marriage on religious grounds. When Kentucky’s governor, in response to the Court’s Obergefell ruling, issued an executive order requiring county clerks to start issuing marriage licenses to same-sex couples, Davis suspended issuing any marriage licenses in Rowan Country. Anyone in Rowan County who wanted to get married this summer had to get their marriage license in another Kentucky county. Several same sex-couples challenged Davis’s actions, and a federal district judge ordered Davis to start issuing marriage licenses. The judge stayed the injunction while Davis appealed the case. After a federal appeals court refused to extend the stay of the injunction so the appeals could play out, Davis’ lawyers turned to the U.S. Supreme Court. Yesterday, the Court refused to stay the injunction, which is about to expire.
In her petition to the Supreme Court, Davis’ lawyers explain that “Davis’ conscience forbids her from approving a SSM [same-sex marriage] license…. She holds an undisputed sincerely-held religious belief that marriage is a union between a man and a woman, only. Thus, in her belief, SSM is not, in fact, marriage.” To sign a marriage certificate for a same-sex couple, the petition argues, would be a “searing act of personal validation [that] would forever, and irreversibly, echo in her conscience—and, if it happened, there is no absolution or correction that any earthly court can provide to rectify it.” To deny her what her conscience demands would mean “elected officials have no real religious freedom when they take public office.”
Long on this kind of passionate rhetoric, Davis’s legal argument was weak, and few could have been surprised when the Court refused to issue the stay her lawyers requested. Although the Court regularly struggles over the conflicts between government regulation and religious freedom when it comes to private individuals (as in last term’s prisoner beard case) and businesses (as in the recent Hobby Lobby case), these issues are less difficult when the conflict is between a legitimate government policy and a public official whose job is to implement that policy. And when the government policy being resisted is a constitutional ruling of the Supreme Court itself, well, then the writing is on the wall.
The Supreme Court will continue to have opportunities to revisit the same-sex marriage case as individuals initiated challenges based on religious liberty claims. And many of these will have more stronger legal grounds than Davis’ claim. Opponents of same-sex marriage note that the Obergefell opinions were filled with respectful references to religious opposition to same-sex marriage. In his opinion for the Court, Justice Kennedy wrote, “[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Chief Justice Roberts wrote of the “[m]any good and decent people [who] oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion.”
The Supreme Court has clearly not heard the last of this issue.