On June 26, 2015, Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan ruled 5-4 for Jim Obergefell in his legal battle with Richard Hodges at the Ohio Department of Health.
Justice Kennedy, a Ronald Reagan appointee, wrote the majority opinion. Ginsburg and Breyer were Clinton appointees. Sotomayor and Kagan were Obama appointees.
The challenge that seeks to overturn that decision is from Liberty Counsel in a case known as Davis v. Ermold.
It involves Kim Davis, a county clerk in Kentucky who temporarily ceased issuing any marriage licenses from June 29, 2015, to early September 2015 after the Obergefell opinion shredded state marriage laws.
"She ceased issuing all marriage licenses so not to discriminate against anyone while she sought an accommodation under the First Amendment for her religious beliefs," a Liberty Counsel press release explains. "But two sets of plaintiffs, including David Ermold and David Moore, sought to mock Davis' Christian faith by forcing her name on their marriage license through litigation."
Their attempt "failed" when then-Governor Steven Beshear (D-Kentucky) agreed that altered licenses without Davis' name were valid.
From September 2015 onward, licenses were issued without Davis' name on them.
In December of that year, newly elected Governor Matt Bevin (R) issued an executive order granting the accommodation Davis sought. Then in April 2016, the Kentucky Legislature unanimously codified the religious exemption by removing the names of all clerks from the state's marriage licenses.
Still, Liberty Counsel says the courts "used Obergefell to initially deny Davis a religious accommodation, took away her liberty with six days in jail, and levied $360,000 against her personally for a same-sex couple's 'hurt feelings'" because their marriage license did not include Kim Davis' name.
Davis v. Ermold asks the U.S. Supreme Court to settle the unique question of whether a government official – stripped of 11th Amendment immunity and sued in her personal capacity for emotional distress – may raise the First Amendment as a defense like any other citizen.
The Supreme Court's review on whether to take this case is set for November 7th.
Liberty Counsel attorney Daniel J. Schmid thinks the court should take the case and ultimately overturn Obergefell, just as it did with the Dobbs case that overturned Roe v. Wade and handed the issue of abortion back to the states.
"It was wrong when it was decided, and it's wrong today, and it should be overturned," Schmid tells AFN. "All the way back to creation was marriage is one man and one woman, and as the chief justice said in dissent in Obergefell, five lawyers don't get to reverse that."
