Commentary

Is Kim Davis the right wing’s vehicle for overturning marriage equality?

Kim Davis
Kim Davis at a press conference following her release from jail. Photo: Screenshot

The right wing has been fulminating about marriage equality ever since the Supreme Court legalized it eight years ago. Opponents of the Obergefell decision have been buoyed by Supreme Court Justices Clarence Thomas and Samuel Alito, stating bluntly that they believe that the ruling was wrongly decided, an open invitation to try the Court again.

The anti-LGBTQ legal group Liberty Counsel is happy to do just that. Its vehicle for doing so: the case involving Kim Davis, the Kentucky clerk who was eventually jailed for contempt of court after refusing to provide a gay couple a marriage license back in 2015.

Last week, Davis was ordered to pay the couple, David Ermold and David Moore, $50,000 each after she failed to convince a court that she was protected from being personally liable because of her position. Davis has also alternately claimed that she was exercising her right to express her religious beliefs.

Davis has been on an endless losing streak ever since she undertook her crusade. When she refused to issue marriage licenses back in 2015, she cited “God’s authority” as her reason, which didn’t much impress the courts, including the Supreme Court, all of which refused to countenance her argument. She ended up spending five days in jail for contempt of court.

However, Mat Staver, the head of Liberty Counsel, says that he’s looking forward to appealing Davis’ case all the way to the Supreme Court. While that may sound like a vain hope, Justices Thomas and Alito’s calls to reconsider Obergefell were tied specifically to Davis.

In 2020, Davis and Liberty Counsel asked the Supreme Court to declare that she had qualified immunity as a county clerk, the same kind of protection that allows police officers from being sued as individuals in civil cases involving their actions as cops. The Court rejected the argument, but Thomas, in an opinion joined by Alito, issued a very sympathetic response, saying that Davis “may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.”

“This petition provides a stark reminder of the consequences of Obergefell,” Thomas wrote. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix.”

In short, let us fix it.

Staver is convinced that the Respect for Marriage Act, signed into law by President Joe Biden last year, ironically provides just the vehicle to overturn marriage equality. He argues that the measure essentially returns the matter of marriage licenses to the states, which can then decide what they want to do. That argument conveniently echoes the line of reasoning used by the right in overturning Roe v. Wade. States can now set whatever limits they want on a woman’s right to choose.

In Staver’s universe, states could stop issuing marriage licenses to same-sex couples, although existing marriages would be grandfathered in. He doesn’t speculate on whether states would be required to recognize those marriages, and he conveniently omits any mention of the other part of the Respect for Marriage Act – protecting interracial marriages.

Just to give you an idea where Staver is coming from, he said that the Respect for Marriage Act would lead to “pedophilic marriages.”

However, Liberty Counsel also has an in at the Court. A report in Rolling Stone said that some of the justices have actually prayed with the leader of the ministry that is under the umbrella of Liberty Counsel.

The composition of the Court has changed since Obergefell was decided. Are there five justices willing to overturn the decision quite so soon? Perhaps the scarier question is whether there are four justices who would be willing to hear the case. That’s the threshold for accepting an appeal. It’s just one shy of the majority and far too close for comfort.

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