In his concurrence to the 2022 Supreme Court Ruling in Dobbs v. Jackson Women’s Health that overturned the Roe v. Wade decision, Justice Clarence Thomas stunned the left when he wrote that the court “should reconsider all of this Court’s substantive due process precedents,” including Hodges v. Obergefell, which effectively legalized same-sex marriage nationwide. Owing to a legal appeal from Former Kentucky county clerk Kim Davis, who was infamously jailed, sued, and then terminated from her role after she refused to issue marriage licenses to same-sex couples because it violated her faith, Thomas may get his chance.
A report released Monday revealed that Davis’ legal representation submitted a petition for writ of certiorari in July, asking the Supreme Court of the United States to consider her appeal of a $100,000 jury decision against her for emotional damages and $260,000 in legal expenses.
The petition lays out the impact of the Obergefell decision in damning terms, pointing directly to the precedent of Dobbs arguing, “The Court’s decision in Obergefell—grounded in the erroneous fiction on substantive due process—is such a decision, and the mistake must be corrected. Indeed, three of the ‘five lawyers who happen[ed] to hold commissions authorizing them to resolve legal disputes’ in 2015 and who ‘announce[d]’ a right that ‘has no basis in the Constitution or this Court’s precedent’ are no longer so commissioned.”
Davis’ legal team added, “Obergefell was ‘egregiously wrong,’ ‘deeply damaging,’ ‘far outside the bound of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed,’ and set out ‘on a collision course with the Constitution from the day it was decided.’ 597 U.S. at 268. Moreover, Obergefell’s errors do not concern some arcane corner of the law of little importance to the American people,’ but ‘usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.’”
The ruling’s impact on Davis was directly addressed.
“As 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.’ ‘As a result of this Court’s alteration of the Constitution, Davis found herself with a choice between her religious beliefs and her job. When she chose to follow her faith … she was sued almost immediately for violating the constitutional rights of same-sex couples.'”
In the petition Davis’ attorneys directly quote Thomas who opined, “historical evidence indicates that ‘due process of law’ merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property.” Adding that while “the Due Process Clause at most guarantees process,” “It does not, as the Court’s substantive due process cases suppose, forbid the government to infringe certain fundamental liberty interests at all, no matter what process is involved.”
They add that “‘[b]ecause the Due Process Clause does not secure any substantive rights, it does not secure a right to [samesex marriage],’ and especially not a right to receive a same-sex marriage license from a specific government official, regardless of that individual’s religious convictions.”
Nine states, including Idaho, Michigan, Montana, North Dakota, and South Dakota, have proposed resolutions calling for the court to overturn Obergefell; four more, Missouri, Oklahoma, Tennessee, and Texas, have called for the recognition of “covenant marriage,” exclusively between a man and a woman.
RELATED: Gay Marriage Has Declined in Approval and I Think We All Know Where to Point the Blame
Although a Gallup poll released in May reported that a steady 68 percent of American adults support same-sex marriage, the question has become more strongly politicized than ever, with record-low acceptance among Republicans at barely 41 percent compared to 88 percent of Democrats, a remarkable 47-point split.
68% of Americans support same-sex marriage.
The current 47-point gap between Republicans and Democrats is the largest since Gallup first began tracking this measure 29 years ago. pic.twitter.com/8JfQSvOTEU
— Gallup (@Gallup) May 29, 2025
According to ABC News, Davis could be the only American with legal standing to bring such a case before the court. In the 2025-2026 term, Associate Justice Brett Kavanaugh is responsible for the Sixth Circuit Court of Appeals and handles writs of certiorari from Kentucky. Kavanaugh joined the decision in Dobbs delivered by Justice Samuel Alito, concurring. His concurring opinion could shed some light on his likelihood to, like Thomas, judge Obergefell on its reliance on substantive due process, and emphasize the neutrality of the court on matters of morality.
He wrote, “The Court’s decision today properly returns the Court to a position of judicial neutrality on the issue of abortion, and properly restores the people’s authority to resolve the issue of abortion through the processes of democratic self-government established by the Constitution.”
Though it is impossible to predict Kavanaugh’s decision to grant certiorari, his willingness to hear the case seems likely. Particularly when remembering his words: “To be sure, many Americans will disagree with the Court’s decision today. That would be true no matter how the Court decided this case. Both sides on the abortion issue believe sincerely and passionately in the rightness of their cause. Especially in those difficult and fraught circumstances, the Court must scrupulously adhere to the Constitution’s neutral position on the issue of abortion.”
The U.S. Constitution is as silent on marriage as it is on abortion. So Justice Thomas may indeed have his chance to rebuke substantive due process again and return the same-sex marriage decision to the states and the people.
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