Lambda Legal vows to continue to fight for the right to marry and LGBTQ+ families
By Camilla Taylor, Interim Chief Legal Officer and Eden/Rushing Chair
Now that the Supreme Court has declined to review the case brought by Kentucky clerk Kim Davis seeking to overturn marriage equality, we can all breathe a sigh of relief.
Oh, wait. No, we can’t. Marriage equality is still under attack.
Kim Davis and her lawsuit were both such a mess that it’s not surprising the Court was reluctant to use her case as the vehicle to overrule Obergefell v. Hodges, the 2015 decision vindicating the freedom to marry for same-sex couples. But other cleaner cases are making their way up through lower courts. The Supreme Court very well might take up a future case challenging marriage equality. And if the Court does, a majority of justices on the Court is likely to be hostile to the claims of same-sex couples and their children. That doesn’t necessarily mean the Court will reverse Obergefell when given the opportunity. But whether the Court does or not depends on us, our vigilance as a community, and our ability to demonstrate to the Court the degree to which families across the country have relied upon the freedom to marry in shaping their own lives and protecting their children.
The Court’s rejection today of the petition brought by Kim Davis wasn’t a huge surprise because it suffered from a number of flaws. She made the novel argument that a government official has a religious right to refuse marriage licenses to same-sex couples, even though her actions had the effect of depriving every same-sex couple of a license in her county.
While this argument is a loser on the merits, it’s also worth noting that she raised it clearly for the first time only in a reply brief before an appeals court. Generally, courts refuse to consider arguments raised so late in the game. Davis also had forfeited in prior proceedings her argument that Obergefell should be overruled. Indeed, when she previously petitioned the Supreme Court in 2020 to hear her case after an earlier loss before an appeals court (she’s now lost before the Sixth Circuit Court of Appeals four times), the Supreme Court declined to take the case. Justices Thomas and Alito issued a statement at that time indicating that they would like to overrule Obergefell (not a surprise) but agreeing that the Davis petition did not warrant review because it did not present the question cleanly enough.
And in the public arena, Davis’s personal life also rendered her a less-than-ideal messenger for people who claim to be devout believers that marriage is between “one man and one woman.” Courts do not usually second guess the sincerity of a person’s religious beliefs, but it’s hard to ignore that Davis herself has been married four times to three different men.
However, the Davis petition is far from the only threat to marriage equality on the horizon.
Numerous states have taken steps to roll back related rights while expressing their hostility. In 2023, Tennessee enacted a law that allows government officials to refuse to marry same-sex couples. In 2025, five state legislatures (Idaho, Michigan, Montana, North Dakota, and South Dakota) considered bills calling upon the Supreme Court to reverse Obergefell. (Idaho’s resolution passed in one chamber but did not make it through the other.) The Texas Supreme Court recently amended its code of judicial conduct to allow judges to refuse to marry couples when the judge has a religious objection despite the rule against judges creating even the appearance of bias.
Those who seek reversal or limitation of Obergefell have been developing various potential vehicles. First, we are watching multiple other cases that similarly involve public officials who have refused to issue marriage licenses to same-sex couples, and who challenge subsequent discipline. Others include disputes involving the spousal presumption of parentage. Our opponents argue that non-biological parents married to their children’s birth parents of the same sex do not deserve the spousal presumption that different-sex spouses generally have under state law. Cases raising this issue are proceeding in state high courts in Oklahoma and Texas.
We also anticipate that a hostile federal, state, or local government entity may seek to restrict the freedom to marry or marriage-related rights and benefits as a vehicle for teeing up a challenge to Obergefell. Although the bipartisan Respect for Marriage Act, enacted in 2022, provides protection from federal and state marriage discrimination in vital respects, anti-LGBTQ government actors might seek to test its boundaries, and exploit marriage-related rights and benefits that are not explicitly addressed by the law. We will fight such efforts, just as we did after the Social Security Administration originally declined to provide spousal benefits to certain same-sex couples after Obergefell.
Finally, our opponents will continue to weaponize the First Amendment to chip away at the freedom to marry. For decades, we have been fighting efforts by our opponents to use free speech, free exercise, and expressive association claims to prevent enforcement of nondiscrimination laws, including in many cases targeting the freedom to marry and related rights and benefits for same-sex spouses. For example, we have fought the federal government’s authorization of discrimination against married same-sex couples who wish to be foster parents in federal and state child welfare programs. And we have fought to prevent businesses from asserting free speech and religious free exercise rights to justify refusing to serve same-sex couples.
As our opponents have focused more and more resources into engineering such attacks, it has become all the more important for us to use our voices to inform courts of the harm it causes families for businesses to be allowed to refuse to serve same-sex couples. The assault on same-sex couples and their children through misuse of the First Amendment remains one of the most dangerous ways in which the freedom to marry remains under threat.
I remember leaving the Supreme Court with my colleagues after the oral arguments in Obergefell a little over a decade ago. We felt optimistic about our prospects of success given the questions asked by key justices who appeared skeptical of marriage bans. However, we knew that whether we won or lost the case, the battle to secure the freedom to marry would be a long-term struggle. We had fought for decades in state courts and lower federal courts before reaching the Supreme Court. We had changed hearts and minds and won milestone victories on behalf of brave families across the nation along the way.
However, we knew our opponents would not simply give up and disappear after our victory before the United States Supreme Court. Securing the freedom to marry and all it should guarantee would require more than a court decision, no matter how significant. It would require a community determined to live with pride and joy, and to defend what we have gained from the inevitable attacks.
To quote Justice Thurgood Marshall, “The legal system can force open doors and sometimes even knock down walls. But it cannot build bridges. That job belongs to you and me.”
So, let’s take a day to celebrate Kim Davis’s long overdue descent into irrelevance.
And then let’s brace ourselves for the tough fight ahead to defend the freedom to marry and all the families who are entitled to full respect and shelter by its protections.