Dem
47
GOP
53
On Monday morning, the Supreme Court released its order list of cases they were considering as to whether or not to grant cert. On the denial list was Davis v. Ermold. Kim Davis is a former county clerk from Kentucky. When the Supreme Court legalized same-sex marriage, she became a national figure when she decided that her county would continue refusing to issue marriage licenses to same-sex couples. One couple sued her for using her government position to deny their civil rights.
In the lower court, she insisted that she was not arguing that Obergefell, the case legalizing same-sex marriage, should be overturned, and that she was merely exercising her First Amendment right to freedom of religion. But then she lost in both the district court and court of appeal. By the time she got to the Supreme Court, she had changed her tune and decided that overruling Obergefell would get her out of this jam.
Not so much, as it turns out. There were no public dissents from the order, so we don't know why the Court denied the petition. But the plaintiffs' response to the cert petition argues that she can't win even if Obergefell was reversed. The reason is that, at the time Davis instructed her employees not to issue marriage licenses, it was the law—one can't undo an illegal act even if the law they violated gets repealed years later. Moreover, as we note, she claims she was following her religious beliefs. That may have been valid if she simply refused to issue a license herself. But she went further and wouldn't let anyone in the office issue one. Her religious beliefs don't allow her to dictate the law for the county. So, Davis can be held liable for her actions, and she has to pay $100,000 in damages as well as $260,000 in attorney's fees to the couple. There's a lesson in there somewhere for all the Trump crusaders currently taking the law into their own hands.
Back in August, when the news first broke that Davis was trying to get before the Supreme Court and we wrote that up, we got a couple of instructive e-mails from readers, which we filed away for a rainy day. It's not actually raining right now, at least not in Los Angeles (though it is EXTREMELY foggy), but it would seem that if we're ever going to run those messages, now is the time. Here, to start, is K.B. in Hartford, CT, explaining why Davis' case was very weak, and predicting (correctly, obviously) that she would never get a hearing before SCOTUS:
Like a pimple on prom night, Kim Davis has popped up again as she tries to persuade SCOTUS to reverse Obergefell, which held, for those emerging from a long nap, that same-sex couples have a fundamental right to marry under the federal Constitution. Davis is causing a lot of unnecessary consternation, which is unfortunately distracting from the real dangers this Court poses to LGBTQ people.
If you're going to bring a test case, it helps to have a sympathetic litigant—say, an elderly widow who had to pay hundreds of thousand dollars in estate taxes because the government wouldn't recognize her marriage. Davis is not that, to say the least. Her lecturing on the sanctity of marriage is a little hard to take, given her history with the institution. She has been married four times and the births of some of her children don't align with the marriage to their father. (I think her third husband is the father for some of her children born when she was married to her first husband. You really need a flow chart.) Having a standard bearer that is low-hanging fruit when it comes to getting dragged on social media is not the best option, even if sometimes you have to play the hand you're dealt.
She's also not terribly sympathetic as a legal matter, as she basically told the Court to fu** off in 2015 and now wants the Court's help. Judges are not particularly fond of helping litigants who won't comply with the Court's rulings, even if they dissented from the ruling in question.
The only way Davis gets out of paying the $360k is for five justices to say that Obergefell was wrong at the time it was decided, that same-sex couples never had the right to marry, and therefore she did not violate anyone's constitutional rights. Boy howdy, that's a stretch. Since literally hundreds of thousands of same-sex couples married in reliance on Obergefell, those marriages would be vulnerable to challenges. Those couples have made financial decisions, formed families, perhaps gotten divorced and had their property divided. Fulfilling Davis's dream of cough, cough restoring the sanctity of marriage would open Pandora's box. I can't see five justices going there.
Even if the Court overruled Obergefell going forward, that hardly ends marriage equality. A good number of states recognize marriage for same-sex couples as a matter of state law and those laws would remain valid. The bipartisan federal Respect for Marriage Act, which requires the federal government and states to recognize marriages that were valid where performed, would allow couples from states like Alabama to go to LGBTQ-friendly states to get married and return home as a married couple, much to the locals' dismay.
Yes, SCOTUS overruled Roe v. Wade rather aggressively, but Associate Justice Samuel Alito twice expressly limited the decision to abortion, which was the price he paid to get five votes. Associate Justice Brett Kavanaugh more or less confirmed this with his concurrence emphasizing the limited reach of Dobbs. Marriage is different because of the widespread reliance on Obergefell.
What LGBTQ folks and their friends should be worried about is broad carve-outs from public accommodation laws for religious beliefs and overturning bans on conversion "therapy" for minors. There may be other issues as well, but revisiting Obergefell is unlikely to be one of them.
So, just because one very weak defendant took a defeat in her very weak case, that hardly means this is over. Slate's Mark Joseph Stern made the same observation yesterday, in a piece headlined "The Real Reason Kim Davis Never Stood a Chance at the Supreme Court."
In our piece back in August, meanwhile, we wrote a little about the politics of reversing Obergefell:
If the Court reversed Obergefell next June, it would cause a stir but probably not nearly as big as the Dobbs decision reversing Roe v. Wade because many fewer people are potentially affected and probably a majority of those are already voting for Democrats. Still, if the Democrats campaigned in part on the idea that the Supreme Court is running amok and has lost all interest in the Constitution and just rules based on their personal views, it could swing some independents.
Reader D.E. in Lancaster, PA, wrote in to push back on that a bit, and to talk about how anti-LGBTQ activism/jurisprudence might well remain a part of the future of the GOP, though overturning Obergefell is unlikely, even if a stronger case than the one from Davis is brought:
I'm not going to say you were wrong when you said, "If the Court reverses Obergefell next June, it would cause a stir but probably not nearly as big as the Dobbs decision," but I will say I don't think you thought that statement completely through.
For one thing, I'm highly skeptical that the Court will take this particular case up. We have to remember that Kim Davis defied the Supreme Court decision and many lower court rulings to get into the place she is now. While some judges—ahem, Alito and Thomas, ahem—might agree with her that it's a bad ruling, I don't think they want to put a stamp of approval on a low-level county clerk openly defying the courts. It sets a dangerous precedent, that if they were to overthrow gay marriage that another county clerk could defy their ruling and just wait until the makeup of the Court changes. Also, Davis is not the ideal spokesperson for traditional marriage, in that she is on her fourth marriage and had children by husband #3 while still married to husband #1. I would normally not care about her personal life, but she was the one who decided to set herself up as the arbiter of which marriages are legitimate, and you can bet it will be brought up, probably not in the Court, but in the media.
If the Court were to decide to take her case, or some other future one, I see four possible outcomes: (1) the Court does what it often does and punts the case back down to a lower court based on a technicality; (2) the Court affirms Obergefell, which is not completely outside the realms of possibility; (3) the Court rules that all gay marriage is illegal, both in the past and in the future, which brings a whole train of difficulties along with it or (4) the Court rules that going forward, gay marriage is illegal but that those marriages in the interim are still valid, which also brings a whole set of problems with it. I'll explain those problems for the last two options in a minute.
Let's first consider Dobbs and the abortion issue. While they might be the Supreme Court, they are not the level of Supreme that all the abortions that took place between Roe and Dobbs were somehow undone. At one time, the pro-life party tried to move away from the aborted-fetus-in-the-trash-can shock photos and started having ads where mothers showed their live children that they say they had at one time considered aborting. These ads, I think, had mixed results because while one could sympathize with one person's past choices, what they were asking was to use choice as a reason for taking away other people's freedom of choice. I also found them dubious in that the only person who would admit that they thought about aborting their live child would have to be a fanatic or at least a really, really cruel parent. Abortions are events of finite duration, and while women often deal with these personal decisions for the rest of their lives, they are not in a continual state of having an abortion. Additionally, abortions are very private affairs, sometimes only known by a couple of individuals. They take place during times that the women who have them would rather not dwell on, sometimes as repercussions of horrible violence. Even the strongest of pro-choice advocates are often reluctant to talk about their abortions, and even for the few strong enough to face the onslaught of criticism, their words are often laced with regret, shame and recrimination. There are also no legal obligations owed to an aborted fetus.
In other words, abortions are everything gay marriage is not; and their only common factor is being opposed by religious fundamentalists. Marriages, whether straight or gay, are often very public affairs, with families, friends and acquaintances all joining in on the celebration. Marriages are the high points of a person's life, and even if they are subsequently divorced, the joy they felt on that day comes through. If gay marriage is overturned, you can guarantee that a lot of people will be talking about the love and the joy they felt on the day they were "married." They will be vocal testaments that the judges were not only wrong but cruel. This might seem harsh, but since Dobbs, not a single aborted fetus has held an interview saying if they had lived they would have been the next Mother Teresa or the next Albert Einstein.
Then there are the hugely complicated legal issues that will follow if Obergefell is overturned. If the Court decides to make all gay marriage illegal—past, present and future—then what happens to legal proceedings that have already taken place, like adoptions and divorces? Could the relatives of an adopted child now sue since the child was placed into the stability of a married family home? In matter of divorces, what if the person who was paying alimony or child support sues to get those monies returned since they were given out "illegally." Could the relatives of a dead person sue a hospital because their wishes regarding life support were ignored, as the hospital listened to the person's then-spouse? Or how about benefits—federal, state and private? What happens to a surviving retired gay spouse who is counting on Social Security survivor's benefits? Do they get cut off? How about private insurance companies, which love finding loopholes in policies? Could they deny claims or try to claw back those already processed? What about joint tax returns that claim a marriage deduction? Since gay marriage is an ongoing state of being, what is the point that the Courts are going to decide it ceases to exist? There's probably a hundred more messy examples that kind of ruling will bring.
Alternatively, let's say the Court decides to keep the interim gay marriages legal. Beyond cutting their own arguments as to why it should be illegal off at the knees, this brings up a host of other legal problems. To have some gay marriages legal and some not will create different sets of rules for governments and businesses. It would bring up the ghost of separate but equal, and would really lead to areas that even some of the conservative justices don't want to go. Can the Justices make a ruling that gives the ax to Obergefell but leaves Loving invincible, as Thomas would like, or can he even take for granted that the other conservative justices would not like to give that ruling another look? Because marriages can last up to 50+ years, there will be a hell of a long time with living examples who are eager to speak out that SCOTUS got their ruling horribly wrong. Yes, Alito and Thomas don't care, but the other four conservatives just might. I would add that Thomas and Alito have to be thinking of retirement and the window to replace themselves with a similar conservative ideologue might be slowly closing. Three of the four remaining right-wing justices have lengthy careers still left and the fourth makes a lot of noise about ensuring the legitimacy of the Court.
I could be wrong, but I don't think this Court is ready to stir up this hornets' nest. I think the outcome would have more blowback than they really want to deal with. And to turn your statement around, the people who hate gay marriage already vote Republican.
One last thing: By the time the Dobbs decision was handed down, Roe had already suffered death by a thousand cuts. Between age restrictions, parental notification, limiting the time an abortion could be performed, banning certain types of abortions, access to clinics, regulations and certification hurdles for clinics, restricting information that doctors could tell their patients and the various funding issues, it gave Dobbs a sense of inevitability. Yes, there have been the cake decorator and "web designer" rulings but neither actually affected the nature of the marriage, only how the marriage could be celebrated, and the former was decided on a technicality. There is no Planned Parenthood of gay marriage. No shock photos of a ruined straight marriage in a trash can that can be paraded around. There are no gay marriage clinics that Republicans can restrict access to. There is little direct government funding that goes to gay marriage. A beheading of Obergefell would be sudden and traumatic, and would be harder for the Judges to justify.
Thanks to both of you for your assessments! (L & Z)