September 2025 DEI – Revisiting Obergefell v. Hodges 10 Years Later
by Dana Fischel, ACP, CAS
In the Q3 2025 edition of Facts & Findings, DEI Committee Chair Terri Rasay Walters, CCP, ACP, wrote an article titled If Loving You is Wrong, I Don’t Want to be Right, which brought attention to the Loving v. Virginia case that legalized interracial marriage. That case was later cited in the landmark 2015 decision Obergefell v. Hodges, in which the US Supreme Court held that, under the Fourteenth Amendment, all states must license marriages between same-sex couples and recognize such marriages lawfully performed in other states.
This year marks the 10th anniversary of the Obergefell v. Hodges decision, which extended marriage rights to same-sex couples nationwide. However, the Supreme Court may soon revisit that precedent. On July 24, 2025, former Kentucky county clerk Kim Davis filed a petition asking the Court to overturn Obergefell. If the justices agree to hear the case this fall, it would be the first time they explicitly consider overturning that landmark ruling.[i]
In her petition for writ of certiorari, Davis argued that First Amendment protection for free exercise of religion immunizes her from personal liability for the denial of marriage licenses. More fundamentally, she claimed the high court’s decision in Obergefell v. Hodges to grant marriage rights to same-sex couples under the Fourteenth Amendment’s Due Process Clause was “egregiously wrong.”
Furthermore, a federal appeals court panel in Ermold, Moore v. Davis concluded earlier this year that the former clerk “cannot raise a Free Exercise Clause defense because she is being held liable for state action, which the First Amendment does not protect.”[ii]
If the case is selected, the Supreme Court will hear the arguments with its current nine-member bench: Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson.
Why is the Supreme Court’s renewed interest in same sex marriage important? According to LGBTQ+ advocacy group Lambda Legal, so far in 2025, at least nine states have either introduced legislation aimed at blocking new marriage licenses for LGBTQ people or passed resolutions urging the Supreme Court to reverse Obergefell at the earliest opportunity.[iii]
In her May 2025 Gallup News article, Record Party Divide 10 Years After Same-Sex Marriage Ruling, Megan Brenan noted that while a substantial majority of Americans favor equal marriage rights, support appears to have softened in recent years. According to Gallup’s data, 58% of US adults supported same-sex marriage in 2015, rising to 70% by 2021. However, this level has since plateaued.[iv]
Although Kim Davis’ case has been filed with the Supreme Court, the justices will not necessarily take it up, considering that the Court only hears a small fraction of the cases it is asked to review. However, since the Obergefell decision, the makeup of the Court has shifted to the right, now including three Trump appointees and a six-justice conservative supermajority.
Chief Justice John Roberts, one of the current members of the Court who dissented in Obergefell a decade ago, sharply criticized the ruling at the time as “an act of will, not legal judgment,” with “no basis in the Constitution.” He also warned that it “creates serious questions about religious liberty.”[v] Davis invoked Roberts’ words in her petition to the high court, hoping that at least four justices would vote to accept her case and move it forward to oral arguments.
We will find out more on September 29, when the justices hold a conference to decide whether to hear the case. However, the official decision on whether it will be added to the docket is likely to come no sooner than October.
[i] https://www.supremecourt.gov/DocketPDF/25/25-125/366933/20250724095150195_250720a%20Petition%20for%20efling.pdf
[ii] Ermold, Moore v. Davis (2025). https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0049p-06.pdf
[iii] Lambda Legal. (June 2025). Protecting LGBTQ+ Families and Identities: A 10-Year Reflection on Obergefell and the Ongoing Fight for Equality. https://lambdalegal.org/protecting-lgbtq-families-couples-marriage-equality-obergefell/
[iv] Brenan, Megan (2025, May 29). Record Party Divide 10 Years After Same-Sex Marriage Ruling. Gallup.com. https://news.gallup.com/poll/691139/record-party-divide-years-sex-marriage-ruling.aspx
[v] https://supreme.justia.com/cases/federal/us/576/644/#tab-opinion-3427258
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