The Kentucky county clerk who refused to sign off on same-sex marriage licenses more than a decade ago has petitioned the Supreme Court to overturn its decision legalizing gay marriage.
In a petition announced by Kim Davis’ attorneys on Thursday, she asks the high court to analyze the “legal fiction of substantive due process” in a move to strike down Obergefell v. Hodges, the 2015 case where the justices said homosexuals have a right to marry.
Substantive due process has been under attack by conservatives who say it let courts create certain rights not explicitly in the Constitution. The doctrine was used for decades to support Roe v. Wade, the 1973 case that gave women a national right to abortion. The justices overturned that decision in 2022, sending the issue of abortion back to the states to regulate.
Liberty Counsel, representing Ms. Davis, pointed to the abortion precedent in supporting their request to overturn gay marriage.
In her filing, Ms. Davis’ attorneys say Obergefell was an act of the court’s will, “not legal judgment.”
“In Obergefell v. Hodges, the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text,” the petition reads.
“As was predicted at the time Obergefell was decided, it ‘would threaten the religious liberty of many Americans who believe that marriage is a sacred institution between one man and one woman.’ Indeed, Obergefell ‘creates serious questions about religious liberty,’ and ‘people of faith can take no comfort in the treatment they receive[d] from the majority.’”
After the high court upheld the right for homosexuals to marry in 2015, Ms. Davis, as county clerk for Rowan County, Kentucky, refused to issue marriage licenses to same-sex couples so as not to violate her Christian faith and state law, which at the time still recognized marriage as between a man and a woman.
She spent six days in jail for her refusal to violate her faith.
The state later codified the right of clerks to have a religious exemption from issuing such licenses.
But a couple sued Ms. Davis because her name was not on their license.
The jury returned a verdict for $100,000 to the couple for emotional distress and fined Ms. Davis an additional $260,000 in attorney fees.
In her petition to the high court, Ms. Davis claims she has immunity from the lawsuit and the judgment against her.
Her lawyers are asking for the justices to hear the case and weigh whether Ms. Davis should be immune from the judgment and also if they’ll overturn Obergefell.
The case is Kim Davis v. David Ermold and David Moore.
A lawyer for Mr. Ermold and Mr. Moore did not immediately return a request for comment.
It would take four justices to vote in favor of hearing the dispute for oral arguments to be granted during the court’s next term, which begins in October.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.