As the 10th anniversary of the 2015 Obergefell opinion approaches on June 26, 2025, where “five lawyers” on the U.S. Supreme Court abused their duty to interpret the Constitution and invented a so-called “right” to “same-sex marriage,” there is one legal case that could challenge it. The case involves former Kentucky Clerk Kim Davis, the first victim of this disastrous opinion, who was sent to prison for six days for refusing to issue marriage licenses while waiting for a religious accommodation.

In Davis v. Ermold, Liberty Counsel will petition the High Court to review the case of Kim Davis, a former Rowan County Kentucky Clerk who has been held personally liable for not issuing a “marriage” license to David Ermold and David Moore. After the Obergefell opinion, Davis discontinued issuing all marriage licenses but referred same-sex couples to clerks who would issue them. She never blocked any person from obtaining a marriage license. However, she became Obergefell’s first victim serving six days in jail, and now has a $100,000 jury verdict levied against her personally. Adding to that amount, the judge tacked on $260,000 in attorney’s fees and costs, for a total of $360,000. 

While the Sixth Circuit Court of Appeals denied Davis’ request to overturn the jury verdict, the appeals court noted that this is a case of “first impression,” meaning that Davis presents a novel or unique question of law which the courts have not settled. The question Liberty Counsel will ask SCOTUS to answer is whether the First Amendment shields Davis from liability for emotional damages based solely on hurt feelings while arguing that Obergefell should be overruled.

By taking the case, SCOTUS can do two things – affirm religious freedom for all people and also correct the Obergefell mistake by overruling the 2015 opinion. SCOTUS can return the religious and governmental institution of marriage back to the states in similar fashion as it did when it found no right to an abortion in the Constitution in the 2022 Dobbs decision that overturned Roe v. Wade.

Dissenting strongly in Obergefell, Chief Justice John Roberts said,

“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” wrote Chief Justice Roberts. “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”

In his dissent, Justice Samuel Alito wrote, “To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has [previously] held that ‘liberty’ under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this Nation’s history and tradition.’  And it is beyond dispute that the right to same-sex marriage is not among those rights.”

Five years later in 2020 when the U.S. Supreme Court previously declined to hear Davis v. Ermold regarding qualified immunity, Justice Clarence Thomas stated that Davis was one of the “first victims of this Court’s cavalier treatment of religion in its Obergefell decision” because it presented Davis with “a choice between her religious beliefs and her job.”

“In Obergefell v. Hodges, the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text. Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman,” wrote Justice Thomas. “The Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”

However, with a significant shift in the High Court’s membership in the last decade, Obergefell is vulnerable. Three of the five Justices in the slim Obergefell majority are no longer on the Court – Anthony Kennedy, Stephen Breyer, and Ruth Bader Ginsburg. While Chief Justice Roberts and Justices Thomas and Alito issued stinging dissents, Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Justice Ketanji Brown Jackson have since joined the High Court.

There is also a growing consensus that Obergefell should be overturned. This week, the Southern Baptist Convention (SBC), the nation’s largest Protestant denomination representing roughly 13 million evangelical Christians, adopted a resolution calling for the overturning of laws and court rulings, including Obergefell, that “defy God’s design for marriage and family.” Even though the SBC has long opposed marriage beyond one man and one woman, this is the first time its representatives have formally committed to reverse the ruling in their pursuit of laws that align with their moral values. The resolution seeks to capitalize on the success of overturning Roe v. Wade with a return to sound constitutional interpretation. 

In his concurring opinion in Dobbs that overturned Roe, Justice Thomas stated that the rationale the High Court used to reverse abortion rights should be the same in overturning other court-established rights, such as “same-sex marriage.” 

Earlier this year, lawmakers in Idaho, Michigan, Montana, North Dakota, and South Dakota introduced similar resolutions calling for Obergefell’s reversal. The resolutions were partially passed in Idaho and North Dakota. While the resolutions are non-binding, they called on restoring the issue of marriage back to the states and the people. 

Liberty Counsel Founder and Chairman Mat Staver said, “The U.S. Constitution provides no foundation for ‘same-sex marriage.’ Obergefell was wrongly decided whereby the Court created a right that is nowhere to be found in the text. We will petition the U.S. Supreme Court because Kim Davis’ case underscores why the High Court should overturn Obergefell v. Hodges. Obergefell threatens the religious liberty of Americans who believe that marriage is a sacred union between one man and one woman.”