Gay Marriage Is On The Chopping Block

Written By Leeja Miller

Further Reading:

The Engagement by Sasha Issenberg

The Power Worshippers by Katherine Stewart

Sources:

Transcript:

Listen friends, I am not one to fearmonger or to make wild bold assertions that something is going to happen when no one can actually predict the future. But based on my experience watching this administration and this Supreme Court, much more closely than the general public, I feel fairly confident in saying that there is a very good chance that gay marriage, at least as we know it today, is going to be gutted next year by the United States Supreme Court. Let’s get into why, what’s going on, and the story behind this fuckin nut Kim Davis. But we’ll get to her. Oh we’ll get to her alright.

The Supreme Court has been asked to hear a case in their next term that would give them the opportunity to overturn Obergefell v. Hodges, the 2015 case that legalized same sex marriage in the United States. The next supreme court term starts in October. At that point, they will convene to vote on the cases they want to hear for the upcoming term. Some have already chosen but many will be chosen at that time. If you’re ever curious about upcoming court cases, Oyez dot org, that’s O Y E Z dot org is a great resource. Oyez dot org slash cases slash 2025 will take you right to the list of upcoming cases for the new term. Anyway, when someone petitions the Supreme Court to hear their case, the court will usually vote on whether or not to hear it. If 4 of the 9 justices vote to hear the case, then it gets added to the docket for the upcoming term. If they decide not to hear the case, to “deny cert” as we say in THE BIZ, then the lower court ruling stands. So only 4 of the 9 justices, 6 of which are stalwart conservatives, have to vote in favor of hearing the case for it to be added to the docket. That being said, only 7 of the 9 actually participate in the vote, with Alito and Gorsuch screening petitions of their own. It would likely be scheduled for oral arguments in the spring and decided in June 2026, if they agree this fall to hear the case. Last week the justices asked for a briefing from Ermold to hear their side of the case, indicating that they are at least open to adding the case to the docket next term. So it’s not a done deal, but there are many reasons to believe quite a few justices will be chomping at the bit to hear this case, and we’ll get into why.

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Often, the way news outlets report on a story differs depending on the bias of the publication. And it’s hard to know how YOUR own perception of bias influences your interpretation of the news. This headline from USA Today caught my eye “Kim Davis refused same-sex marriage license in 2015. Now she wants to cancel gay marriage.” Using the Ground News browser extension, I can see that USA Today is considered “left leaning.” To get a fuller picture of the story on all sides of the political spectrum I can click on Full Coverage, which will show me coverage of the same story from publications across the political spectrum.

My partner on today’s video, Ground News, uses 3 independent monitoring organizations to assess the bias rating for each publication. Each news monitoring organization has their own methodology - including editorial reviews, blind bias surveys, independent reviews, and third party research. These are legit INDEPENDENT organizations, but they are limited by the data available to them: their analysis is done in the context of the U.S. political system. Our overton window has shifted so far right that USA Today is considered “left leaning.” That tells you a lot about the context within which the media you’re consuming operates. And thanks to Ground News, I get even more context, including how factual each publication is and who owns it, giving me a well-rounded idea of the motivations, biases, and accuracy of the news I’m consuming. Wouldn’t it be great if everyone in America had that much information about the news they consume??

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This is where Ground News comes in - and why I've been using them for over a year. Today’s partner Ground News is an app and website that offers tools to help you critically analyze the news you read, providing context to understand the full picture. I feel better equipped to make sense of what’s happening in the world without being influenced by just one perspective. And listen I’m not the only one who loves Ground News, the Nobel Peace Center even called it "an excellent way to stay informed, avoid echo chambers, and expand your worldview.”

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First I want to back up because it’s essential to understand the history here in order to get why this is up for debate now. The case, Obergefell v. Hodges, was decided in 2015 and is part of a group of cases decided by the US Supreme Court that revolve around the idea of privacy within the 5th and 14th Amendments. Yes the 14th Amendment. Yes that’s the same amendment that deals with birthright citizenship and equal rights. Yes it is one of the most consequential and continually fought over parts of our entire constitution. It was passed in the wake of the Civil War as an attempt to right the wrongs of slavery, racism, and inequality by attempting to ensure that people, especially black people and the descendants of enslaved people, were protected from unequal treatment by the government, including in their right to citizenship no matter where their ancestors were from, and in their right to be free from being deprived of life, liberty, or property, without due process. Meaning you are owed the chance to be heard by a judge before the government can take your life, liberty, or property. And within the idea of “liberty” as protected by the 14th Amendment, over the years the Supreme Court justices have inferred, from that protection of liberty, that it includes a protection of privacy. In order to have liberty one must have a certain level of privacy especially from the prying eyes of the government. And this isn’t just some whack job idea that the liberal justices made up in the years after the 14th Amendment was passed. It is based on fundamental philosophy about the meaning of liberty within a democratic society. Some of the most well known philosophers have waxed poetic about the importance of privacy within the context of liberty, from John Locke to John Stuart Mill. I just got this book, John Stuart Mill On Liberty, Utilitarianism, and Other Essays. His essay On Liberty is less than 100 pages long if you’re so inclined, I’ll link this book in the description. I’m forcing myself to read the words of all these dead white men because these philosophers did, it turns out, shape the backbone of our society and government. ANYWAY all that to say the idea that privacy in one’s personal affairs as part of the essential nature of the definition of “liberty” is not some whackadoo inkling a few justices got and then wrote into judicial opinions. It has a basis in the canon of Western philosophy and literature. And over the years the justices have used that underpinning to reason that this idea of privacy extends to numerous spheres of one’s personal life. There’s Griswold v. Connecticut from 1965 which found that it extends to the private choice to obtain and use contraception. There’s Loving v. Virginia from 1967 which found that it extends to the choice to marry someone of a different race. There WAS Roe v. Wade from 1973 which found that it extends to abortion. There’s Lawrence v. Texas from 2003 which found that it extends to engaging in sexual conduct between consenting adults, in that case sodomy could no longer be criminalized, to put it plainly homosexual acts could be criminalized in this country until 2003. Okay. And then there’s Obergefell v. Hodges from 2015 which found that it extends to marrying someone of the same gender. There’s also the argument that denying same sex couples the right to marry is a violation of their rights under the equal protection clause because it burdens same sex couples in a different way than straight couples and therefore denies them equal treatment. And in Obergefell the court held that while the First Amendment protects the rights of religious organizations to believe what they will and adhere to their own religious convictions, it does not allow the STATES to deny same-sex couples the right to marry.

Obergefell was controversial when it was decided, and the court was split. The 5 justices that voted in favor were Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Only two of those justices remain on the court today, though one can guess that Justice Jackson would likely fall on the liberal side in a future Obergefell-related decision. The 4 dissenting justices were Roberts, Scalia, Thomas, and Alito. Three of them remain on the court, along with the three justices that Trump appointed during his first term. And those dissenting justices wrote NUMEROUS dissents in Obergefell, largely saying that the court had overstepped its role, that marriage rights should be left to the states, that the court was way overstretching the due process clause, and that traditional marriage at the time of the writing of the constitution would not have allowed for the marriage of same-sex couples. I think the argument that the judges were overstepping into legislative matters is hogwash considering the fact that the conservative justices are perfectly happy to make judicial decisions that impact state and federal legislatures when it furthers their own ends. The decision that states must treat gay and straight couples the same under the law can clearly be argued to fall under the court’s purview to interpret what the constitution says. When the court makes an interpretation, it is going to inevitably impact how a state or federal legislature acts or writes laws going forward. That’s part of the checks and balances act. To say that it over-extends the due process clause of the 14th Amendment I’ve already argued against–we have centuries of political philosophers that have easily attached privacy to the idea of liberty, and I don’t think anyone is trying to argue that who one chooses to marry isn’t deeply personal, private, and your feeling of liberty, of liberation, of being liberated, would absolutely be impacted if you are not left to marry another consenting adult of your choice. And as to what was true in society at the writing of the constitution, as Kennedy argued in his opinion for the court, times change, and by attempting to enter into a marriage, gay couples are not invalidating its importance they are actually validating the sanctity of marriage by acknowledging its centrality to their lives and to society generally. But the reality of judicial interpretation and of legal arguments generally is that it is just that: interpretation. We are not reading equations, there is not a right and a wrong answer that can be proven unequivocally through facts alone when it comes to constitutional law. There are historical facts to support and refute every position under the sun. There are forms of judicial interpretation, like textualism and originalism that a jurist is going to adhere to or not based on their own judgment on what’s most important when interpreting laws. I think the reason I come out the way I do on this, legally speaking, is that I am a realist above all else. Theory is all fun n games, and it’s important to use theory and philosophy as a nice goal post. What DOES Democracy mean? What IS privacy? Those are important questions to mull over and chew on, but then it is a judge’s job to apply those philosophical questions to the real world, to the laws as written and to the world as it is lived in 2025. It is not a stretch or an overreach for them to have said, in 2015, that we live in a world where marriage access is essential for accessing a lot of rights as a couple, from taxes to adoption to end of life care. And we live in a world where homosexuality is no longer a criminalized, hated act pushed into the shadows, at least not universally, where we’ve become a bit more enlightened, where many people are now out of the closet, and where denying those people the essential rights that come with marriage means the state is infringing on their privacy in their choices and on their equal protection under the laws.

And the reality today in 2025 is even more stark. Because of Obergefell v. Hodges, there are now over 800,000 same sex married couples in the United States today and 1 in 5 of them are currently raising a child under 18. If the court overturns Obergefell v. Hodges, that does not mean those marriages would be cancelled, for the record. The 2022 Respect for Marriage Act requires states and the federal government to recognize legal marriages performed in any state, even if the law changes in the future. Now, of course, that act could be repealed by Congress, so that’s not to say there’s no danger to already married couples, but the Supreme Court isn’t going to invalidate your marriages. That being said, we live in a different world now than even 2015, one where nearly a million same-sex couples HAVE marriage rights, where it has become normalized to the point that to turn around and deny it to future couples could be argued to infringe on their equal protection even more.

That being said, the thing about civil rights, liberties, and protections, is that we live in a society, a very big society as far as the federal government is concerned, wherein 330 million individuals have to live in some semblance of harmony. Therefore, concessions and compromises have to be made between rights and burdens. My freedom to do something versus your freedom to be protected from something, my rights vs your burdens. And it is often the 1st Amendment that gets implicated in those discussions. Because my freedom to say whatever I want can only go so far. You have the right to sue me for defamation if I say something defamatory against you. You have freedom to practice your religion but I have freedom to abstain from practicing any religion. When it comes to gay marriage, court cases have grappled with both scenarios, freedom of speech and freedom of religion. In a case like 303 Creative from a few years ago, the argument that was successful before the Supreme Court was that a graphic designer can’t be forced by the state to serve gay couples because their work is a form of speech and that would be the state coercing her to speak in a certain way. But the case that is now before the Supreme Court, Davis v. Ermold, deals with religious freedom. Which brings us to Kim Davis.

Kimberly Jean Davis was the Rowan County Clerk in Rowan County, Kentucky in 2015 when the Obergefell v. Hodges decision came down. After that decision, a number of county clerks across the country put up a fight, because it is county clerks that sign their name on the marriage licenses that are issued in their county. Eventually, the Kentucky Governor ordered all county clerks in his state to issue same sex marriage licenses immediately. Kim Davis continued to refuse. She was sued by six different couples over her refusals. David Ermold and David Moore were one such couple who posted a viral video of her refusing them a marriage license and later sued [insert video clip].

At the initial hearing for this case, again back in 2015, Kim Davis acted as the sole witness in her defense. She said that her decision to refuse to sign the marriage licenses was “thought out” and she “sought God on it.” But she also decided that despite the oath she made to uphold the laws of her county to a T no matter what, and despite the very clear job description that requires her to do just that, she decided not to resign her post because then issuing the licenses would just happen through her deputy clerks, saying quote “If I resign, I solve nothing. It helps nobody.” So you agree, this isn’t about your own personally held religious convictions? You’re trying to “solve” something. Interesting. Sounds a lot less like freedom to exercise your religion and a lot more like you’re seeking freedom to impose your religion on others through your elected government position. Interesting. When Kim continued to refuse marriage licenses despite a court order, she was held in contempt of court and imprisoned for five days. Which of course added fuel to her case because her lawyers could then say she’s the only person in the history of our republic who has been imprisoned for exercising her religious beliefs regarding marriage. She’s being persecuted because she had to, let me check my notes, certify that a couple met the state requirements for marriage. When the lower court issued a stay barring her from applying her “no marriage licenses" policy to future requests, she appealed that ruling, and the 6th circuit ruled against her, saying “It cannot be defensibly argued that the holder of the Rowan County clerk’s office may decline to act in conformity with the United States Constitution, there is thus little or no likelihood that the clerk in her official capacity will prevail on appeal.” She then appealed THAT to the Supreme Court, again this is 2015, and in August of that year the court refused to hear her appeal. She made a public statement saying “I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God's definition of marriage, with my name affixed to the certificate, would violate my conscience.”

As a brief though important aside, Kim Davis has been married four separate times, divorced thrice. According to her Wikipedia article quote “Davis has been married four times to three husbands….. Davis has two daughters from her first marriage and twins, a son and another daughter, who were born five months after her divorce from her first husband. Her third husband is the biological father of the twins, the children being conceived while Davis was still married to her first husband. The twins were adopted by Davis's current husband, Joe Davis, who was also her second husband; the couple initially divorced in 2006 but later remarried.” Divorce AND adultery, Kim? Naughty naughty!! But that all happened in the early 2000s and she had only converted to the Apostolic Christian religion four years prior to the events of 2015. When this hypocrisy was pointed out she fell back on the age-old christian one liner: hate the sin love the sinner, saying “I am not perfect, no one is. But I am forgiven and I love my Lord and must be obedient to Him and the Word of God.” Why is it that when a Christian commits a crime or sins it’s a simple “I’m not perfect but God forgives me” but for everyone else they made their bed they have to lie in it and live with the consequences and also law and order and life sentences and death penalties. Fire and brimstone for thee, a loving forgiving God for me. Interesting.

ANYWAY so 2015, Supreme Court says nah we’re not hearing it. That case continues on its way, eventually the 6th circuit upholds the lower court’s ruling that she was not eligible for qualified immunity because her actions were not discretionary, and posed a direct and substantial interference with the couples’ right to marriage and was not justified. She appealed again up to the Supreme Court. By this point in 2020, this has been going on for five years. I have started my YouTube channel at this point. I make a video about this. FIVE YEARS AGO. And here we are, still talking about this stupid shit. When we say the legal system moves slowly, this is what we mean. This has been 10 YEARS in the making. The reason I made a video about this five years ago is because the Supreme Court denied cert again in this case, but justices Thomas and Alito issued a statement at that time along with the denial, basically saying that the question that Davis was posing here about her qualified immunity and religious accommodation in her official capacity wasn’t the RIGHT way to bring a case before the court to challenge Obergefell. But they did not mince words about their feelings about Obergefell, saying quote “This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari. Nevertheless, this petition provides a stark reminder of the consequences of Obergefell. 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. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”

Okay so after cert is denied, Kim is granted a religious accommodation in Kentucky wherein her name doesn’t have to be explicitly listed on the marriage licenses. Then the plaintiffs sue Kim Davis not in her official capacity as county clerk but in her individual capacity where she is stripped of any sort of qualified immunity. Qualified immunity she shouldn’t get because she wasn’t acting in her official capacity when she denied those marriage licenses she was in fact acting in contravention of her official capacity for which she was charged with acting in accordance with the US constitution which, for now, as interpreted by the supreme court of the land, allows gay couples to marry. Anyway, so this was a personal damages lawsuit against Kim Davis brought by the couples she denied marriage licenses to, seeking actual and punitive damages against her. A jury trial awarded them damages for emotional distress in 2023 and Kim appealed to the 6th circuit AGAIN and they denied her appeal AGAIN because even though she’s being sued as an individual, she was acting on behalf of the government and therefore she was not protected by the First Amendment. The Sixth Circuit said “those opposed to same-sex marriage do not have a right to transform their ‘personal opposition’ into ‘enacted law and public policy.’” “The Bill of Rights,” the court stated, “would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates.” And now Davis has appealed that decision to the Supreme Court, asking them to overrule their decision in Obergefell because a right to same-sex marriage has no basis in the constitution and left her with a choice between her religious beliefs and her job.

So if the court decides to grant cert and hear this case, it presents a much cleaner question with which the now conservative supermajority can run if it decides to fully overturn Obergefell. It’s the case Thomas and Alito were begging for back in 2020 when I first warned about the danger to marriage equality. And I will reiterate what I said in that video, which is when we’re looking at something like religious freedom vs a right to privacy and, thereby, to liberty, we need to discuss burden. What is the burden here? On the one hand, you have Kim Davis who desperately believes, despite her own actions to the contrary, that marriage is sacred, and should be between a man and a woman as dictated by her God. She wishes to be free from being forced, as a part of her job, to issue licenses to couples who have proven they are legally eligible to be issued a marriage license. It burdens her because she has to put her name on a piece of paper certifying a union that goes against her religious beliefs. Her only other options are to quit and get literally any other job. That’s her only option!!! Literally every other job on the planet that doesn’t include issuing marriage licenses. She is persecuted. She is BURDENED.

Then you have the couples she is denying licenses to. What burden do they carry if Kim is allowed to deny them licenses? What other options do they have? According to ABC News, quote “We now have two decades of evidence that marriage equality has helped millions of people across the country. In 2024, the nonpartisan RAND released a study about marriage for same-sex couples. The think tank found many positive outcomes, including for children, health, financial well-being and relationship stability … [finding] “no empirical basis for concerns that allowing same-sex couples to marry has negatively affected different-sex couples and families.”

And the burden on same sex couples, in allowing Kim Davis to discriminate against them, includes denial of access to essential things like end of life decisionmaking, legally adopting a child in a combined family unit, the tax benefits that come from marriage, and the myriad other rights that you gain access to when you become married. In Obergefell the court also focused on the societal scorn placed on gay couples which a denial of marriage rights perpetuates by continuing to “other” them in society. Their other options don’t exist. Hide in the shadows. Live the life of a married couple without any of the protections. Enter into a hetero-marriage and be deeply unhappy and unfulfilled in that marriage for the rest of their lives? They can go to a different county to seek a marriage license, that’s true. But that’s a slippery slope because if every county clerk is allowed to argue that they can just go to a different county, eventually there will be no other county. I don’t think it’s hard to see how the burdens endured by a same sex couple who is denied a marriage license far outweigh the burden that Kim Davis experiences when she puts her name on a license or if she were to quit her job. On top of that, Kim whether individually or in her official capacity is taking her religious beliefs and turning them into an act of the state, which is very different than, for example, a private citizen who refuses to bake a cake or do graphic design for a gay wedding.

The problem is that in recent years our ideas of freedom of religion have begun to morph. For many years beginning in the 70s, the Supreme Court and society generally moved in the direction of emphasizing peoples’ right to be free from religion–freedom from having religion imposed upon you, for example through mandated Christian prayers in public schools. You can pray whenever you want in your free time, you are free to exercise whatever religion you want. But the state, through public schools, cannot step in and mandate a prayer or the reading of religious texts or the display of the 10 commandments, because it infringes on the freedom FROM religion. Due to fierce backlash and a growth in Christian Nationalist ideals in this country, we are now shifting away from freedom FROM and towards a freedom TO. Freedom to impose your religious beliefs on others. Freedom to require 10 commandments in schools. Freedom to pray during high school football games. Claiming that barring a person from not only practicing their religion but also forcing everyone around them to conform to that religious practice is an unconstitutional infringement on their right to freely practice their religion. There is no one correct solution to this tension between freedom to and freedom from religion, just like there’s no one correct solution to the tension between any rights and freedoms that overlap wherein a compromise is necessary, just like there is no one correct interpretation of the constitution and what it says. This is the very job of government and of politics, frankly, to address these conflicts and resolve them in a way that creates a balance, that allows for society to continue forward. Government, whether it’s the Supreme Court or Congress or whatever, is never ever going to solve these underlying conflicts. They will always be there. Politics is the act of finding some solution so groups of people can live in general harmony and function relatively peacefully. How you interpret what those compromises and concessions should be depends on your own deeply held beliefs, on how you interpret the world, and what you value most. It’s why there’s no such thing as a judge that neutrally interprets the law. That’s not possible. And the reality is that we currently have a Supreme Court dominated by justices with a very particular worldview, who have made it clear they are willing to cherry pick the facts, history, and theory that serves the Trump agenda and the Project 2025 playbook that dictates a Christian Nationalist view. And given the fact that in the past few months they have done things that were previously unimaginable or very remote possibilities: overturning Roe v. Wade, giving Trump sweeping immunity from criminal prosecution, gutting nationwide injunctions–something they could have done when it was Biden whose policies were being stopped by the injunctions but seemed unconcerned with until it was Trump’s agenda that was being slowed–given this recent history, anyone who’s saying there’s no way they’d touch marriage equality is being woefully naive. Everything is on the table with this conservative supermajority. The integrity of the court, as with literally every other institution in this country, has in very short order, 8 months, been completely decimated. There is nothing they are above. And the rights protected under the penumbras of the due process clause have long been hated especially by Alito and Thomas, someone who benefits from the privacy protections he was granted under the 14th Amendment when he chose to marry a white woman. But pointing out hypocrisy has become almost a moot point by now, a given, something not even worth noting at this point because conservatives don’t care about hypocrisy, that isn’t part of the equation when complete power and control are on the table. And Kim Davis is truly the embodiment of that hypocrisy, of the ugliness that begets from bigotry upheld by the law.

Thomas and Alito’s statement from 2020 acknowledges as much, painting Kim Davis as a persecuted minority being victimized by an overzealous court, saying “Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss. For example, relying on Obergefell, one member of the Sixth Circuit panel in this case described Davis’ sincerely held religious beliefs as “anti-homosexual animus.” … Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy.” The persecution complex continues. The problem is that no one is asking anyone to alter their religious beliefs. They are simply asking for legal rights. Civil rights granted by the state. Kim Davis can live her life exactly how she wants. If she wants a job with the government, she has to enact those laws, no matter what they are. She is not being asked to alter her religious beliefs. She’s being asked to do the job she volunteered for and was getting paid $80,000 taxpayer dollars a year to perform. A job to which she was not re-elected in 2018. When a religion openly promotes anti-homosexual animus by saying that their union is perverse and against the will of God, that makes you a bigot. Just because your religious texts say its ok to be a bigot doesn’t make you less of a bigot. It doesn’t make you a persecuted victim when someone points out that bigotry, or when society moves past your backwater views and tries to promote true liberty and freedom for ALL. There are PLENTY of Christians who manage to square their God and their beliefs with the idea that gay people deserve civil rights. We are a country of laws separated from religion for a reason, but that reality is very quickly going away. We are not a country run by a minority faction of religious and nationalist zealots hell bent on taking as much control as they can and persecuting anyone who doesn’t fall in line in the process. Gay marriage has been in their cross hairs since the moment it became legal and Kim Davis just lobbed the Supreme Court a softball aimed at doing away with the whole thing. According to ABC News quote “So far in 2025, at least nine states have either introduced legislation aimed at blocking new marriage licenses for LGBTQ people or passed resolutions urging the Supreme Court to reverse Obergefell at the earliest opportunity.” This despite the fact that the majority of Americans overwhelmingly approve of gay marriage, with recent polling finding that 72% of Americans support gay marriage, including 56% of Republicans.

Thomas and Alito decried Obergefell as anti-democratic because it was decided by judges and not Congress, but explain to me how a decision that goes against the will of 72% of the country is the more democratic outcome. The answer is it’s not. The answer is the democracy of it all was never the issue. And now that they have a supermajority and the case they’ve been begging for for years, there’s nothing to suggest the Supreme Court is going to decide to back down now.

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And if you liked this episode, you’ll like the one from last week about Trump’s Nvidea chip deal that just gave China a huge advantage.


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