Even if the Court was champing at the bit to revisit Obergefell, this was a terrible case in which to do so.
It was no surprise this morning when the Supreme Court turned away a petition that asked, as one part of a case, to overturn its same-sex marriage decision in Obergefell v. Hodges. Or at least, it was only a surprise if you were reading breathless coverage driven by progressive activists in the media.
There are two potential arguments for taking a case to consider overturning Obergefell, and they are serious ones. One is that the decision itself is legally nonsensical, undemocratic, and should never have come out the way it did. Without rehashing all of those arguments here — see here, here, here, here, here, here, and here for a sampling of my writings on the topic — the 5–4 decision (with the cautious Chief Justice John Roberts in scathing dissent, joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) barely even pretended to have anything to do with the text of the Constitution, let alone how that text was understood by the American people when they ratified the 14th Amendment in 1868. The decision was grounded in the due process clause of the 14th Amendment, yet rather than take seriously the Washington v. Glucksberg test, asking whether same-sex marriage was deeply rooted in our history and tradition, it simply found that marriage was so rooted, and then redefined marriage away from those very roots. As a matter of constitutional hygiene, the Court ought not to just let a passing five-vote majority throw out the fruits of years of democracy — including multiple statewide referenda passed by large majorities within the decade before Obergefell — without any substantial basis in the Constitution or any honest effort to situate the decision within precedent.
The second argument for taking up Obergefell at the earliest possible opportunity is precisely that it is a precedent binding on the lower courts. When a question is unsettled, the Court typically prefers, if possible, to wait for it to percolate — that is, for different lower courts to consider all the angles and see if the result is a consensus or a split. But no split can develop once there is a clear precedent: the Court either adheres to it or overturns it.
But against these two arguments, there are weighty factors making it unlikely that the Court will return to the question.
First, unlike in the Dobbs decision, there would be serious complications of settled reliance-on-the-decision issues and interstate workability to the overturn of Obergefell. Many same-sex marriages have been recognized by the states since 2015, and even if state bans on recognition of those bans were to be reinstated, the Court would be forced to face up to a lot of arrangements (including things like state tax and family law and corporate benefits) created on the basis of Obergefell. Some eggs are hard to unscramble once shattered. And even before the case was decided, the prospect of significant divergences between different states’ marriage laws presented knotty problems that are easily avoided by a mandatory federal rule that is uniform across the country, even if that rule is a judicial invention. That’s not the case with abortion, at least not to nearly the same extent.
Second, while the Court forced the political system to accept same-sex marriage at a time when the public was deeply divided, it has set down political roots as a result of the Court’s action. While a lot of Americans never really bought the case for same-sex marriage, they have accepted it as fact. There’s a reason why this case, Davis v. David, did not arise from a state or even a county trying to enact or enforce a law against same-sex marriage. A couple of amicus briefs were filed supporting the petition, including briefs by John Eastman and Roy Moore, but the conspicuous absence of any elected Republicans on that roster likely confirmed the justices’ suspicions that the elected branches have made their peace with Obergefell. Without a serious political movement, the Court just won’t see the prudence of reconsidering its decision. (That’s even aside from the decision being wildly popular with legal elites, among whose company even the conservative justices are commonly found.) Third, Obergefell is unlikely now, after Dobbs, to affect much the course of future decisions, at least with the current majority. It stands on its own island, with the Dobbs opinion having restored the Glucksberg test to its proper application. As a result, the current Court sees no urgency to fixing Obergefell as a matter of fixing the law.
Added to all of that, even if the Court was champing at the bit to revisit Obergefell, this was a terrible case in which to do so. The case was brought to the Court by Kim Davis, the Kentucky county clerk who refused to comply with Obergefell back in 2015, and is still being sued for damages for refusing to issue marriage licenses. The petition, arising out of that lawsuit, presented three questions:
(1) Whether the First Amendment Free Exercise Clause provides an affirmative defense to tort liability ii based solely on emotional distress damages with no actual damages in the same manner as the Free Speech Clause under Snyder v. Phelps, 562 U.S. 443 (2011). (2) Whether a government official stripped of Eleventh Amendment immunity and sued in her individual capacity based solely on emotional distress damages with no actual damages is entitled to assert individual capacity and personal First Amendment defenses in the same or similar manner as any other individual defendant like in Synder [sic] v. Phelps, 562 U.S. 443 (2011), or does she stand before this Court with no constitutional defenses or immunity whatsoever. (3) Whether Obergefell v. Hodges, 576 U.S. 644 (2015), and the legal fiction of substantive due process, should be overturned.
If you’re trying to get the Court to take on a major revision of precedent, it’s typically a bad sign that you listed it as the third question in your petition. Even Lawrence Hurley of NBC News acknowledged that “reconsidering Obergefell was not the main legal question presented in Davis’ appeal.” Which is why alarmed reports by Obergefell’s defenders about this petition reaching the Court should never have been taken seriously.