The Supreme Court rejected a long-shot bid Monday by Kim Davis, the former Kentucky court clerk who refused to issue a marriage license to a gay couple, to get the justices to reconsider the court’s 2015 ruling legalizing same-sex unions nationwide.
Davis, 59, petitioned the justices in July to review a lower court’s 2022 finding that she violated David Ermold and David Moore’s constitutional right to marry.
Four justices would have had to support hearing the case for oral arguments to be scheduled.
Monday’s order did not indicate whether any of the nine justices pushed to hear Davis’ appeal; however, Justice Clarence Thomas has suggested that the ruling in Obergefell v. Hodges be given a second look.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote in a 2022 concurring opinion in Dobbs v. Jackson Women’s Health Organization, which overturned the Roe v. Wade decision that had enshrined the constitutional right to abortion.
“Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents,” Thomas added in the concurrence, which was quoted by Davis’ lawyers in their petition to the Supreme Court.
“Substantive due process” refers to the notion that Americans have fundamental rights that aren’t specifically established in the Constitution.
In addition to Obergefell, Thomas was referring to the 1965 ruling in Griswold v. Connecticut, allowing married couples to access birth control, and 2003’s Lawrence v. Texas, in which the court forbade states from outlawing consensual gay sex.
Davis served five days in jail in 2015 for refusing to issue a marriage license to Ermold and Moore.
The former Rowan County clerk was subsequently ordered to pay a $100,000 jury verdict for emotional damages and $260,000 in attorneys’ fees to the couple.
“If ever a case deserved review, the first individual who was thrown in jail post-Obergefell for seeking accommodation for her religious beliefs should be it,” Liberty Counsel, the nonprofit law firm representing Davis, wrote in its petition, which also asked the court to consider “whether Obergefell v. Hodges … and the legal fiction of substantive due process, should be overturned.”
Monday marked the second time the high court rejected a petition by Davis to hear her appeal, having previously done so in 2020.
