The Obergefell case legalized same-sex marriage nationwide.
"We need four justices to vote yes to take the case, and obviously we need five justices to win," Liberty Counsel founder Mat Staver told the Washington Watch program.
The Obergefell ruling in 2015 was 5-4.
Justice Anthony Kennedy, a Reagan appointee, wrote the majority opinion.
Chief Justice John Roberts, who did not rule for Obergefell, said that the five justices or lawyers as he called them, imposed their own opinion or will, not a legal judgement.
Soon after the Obergefell decision, Kentucky court clerk Kim Davis decided not to issue any marriage licenses while she asked for a religious accommodation. While she was waiting for that accommodation response, Davis was sued by same-sex couples.
Then Davis ultimately went to prison for six days. While Davis was in prison, one of the deputy clerks issued a license, but wrote through the name. Then-Gov. Steve Beshear, a Democrat, refused to give an accommodation and said the license was valid. Davis eventually got an accommodation from Gov. Matt Bevin, a Republican, via executive order. The legislature later gave her an accommodation.
While Davis got what she wanted, so did the same same-sex couple. They got the license they wanted, but it didn't have her name. So, Staver said they continued to pursue a case against Davis, one that resulted in a jury award of $100,000 for emotional distress. Davis was also ordered to pay $260,000 in legal fees.
Liberty Counsel is asking to undo all this, plus Obergefell.
"The two issues are free exercise of religion should be protecting her," Staver said. "She got the accommodation, she should have gotten it originally when she asked the judge, but he didn't grant it, and then secondly, Obergefell, this 2015 fictitious notion that two men can marry should be overturned."
The case involving Kim Davis that is being reviewed today is known as Davis v. Ermold.
In a previous story on AFN.net, attorney Daniel Schmid of Liberty Counsel said that Obergefell was wrong when it was decided, it's wrong today, and it should be overturned.
"All the way back to creation 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," Schmid told AFN.
