On a hot day during Pride Month in 2015, in a 5-4 Supreme Court Case named Obergefell v. Hodges, the Court decided the right to marry is protected under the 14th Amendment and applies to same-sex couples. The ruling was based on a group of same-sex couples who sued the states of Ohio, Michigan, Kentucky, and Tennessee for not recognizing same-sex marriage. The Court ruled that, due to the 14th Amendment’s Due Process Clause, which guarantees the right to marry as a fundamental liberty, same-sex American citizens have the right to marry. As someone who had grown up in the arts, specifically theater, this ruling changed the lives of many around me.
This past July, 10 years after the ruling, Kim Davis, a former Kentucky Clerk, appealed to the Supreme Court to revisit the Obergefell decision. Davis didn’t give same-sex licenses to people in Kentucky. As a result, she was jailed and “a jury ordered her to pay $360,000 to a couple she refused to marry,” according to NPR. In turn, she attempted to appeal to the highest court. She believed it was within her First Amendment right to refuse the license due to her freedom of religion. On Nov. 10, the Court denied the appeal, which has caused a wide range of reactions.
Although it appears that most reactions thus far have been positive, there have been some negative ones. Some critics say they are surprised that the Court denied the appeal due to the Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which was the case that overturned Roe v. Wade, saying that the Fourteenth Amendment’s Due Process Clause doesn’t protect the right to an abortion. As the Court has recently taken a conservative ruling on many cases, relying primarily on originalism — believing in the original intent of the framers while interpreting the Constitution — and textualism — believing to rule based solely on what the Constitution says verbatim — many critics believe that if the Court had taken on the case, they would’ve ruled in favor of overturning Obergefell. People are seeing this as a beacon of hope in the recent rise of conservatism in the U.S., and some even view it as a result of the recent wins for Democrats in Congress and in mayoral seats across the U.S.
What will be interesting to see is what reaction many states will have to this non-decision. For example, back in February, “lawmakers in nine states had created proposed measures to undermine same-sex marriage,” according to NBC News. Keep an eye out for the Texas Supreme Court’s reaction to the decision as well, following their October ruling, which didn’t impose sanctions on Judges who refused to perform wedding ceremonies for LGBTQ+ couples, based on the state’s rules on judicial impartiality. Some view this as another potential opportunity for the Supreme Court to be placed in a position to rule on Obergefell.
All in all, when considering the Supreme Court, especially a conservative court, it is worth noting that the SCOTUS is technically not supposed to have any type of political bias. Instead, it’s supposed to rule based on the Constitutionality of the case. The history of the Supreme Court has been marked by division, largely due to the differing presidencies that appointed justices.