Staver’s petition mounts a sophisticated legal attack on the doctrine of substantive due process, which underpinned the Supreme Court’s recognition of marriage equality in Obergefell v. Hodges. The petition describes the ruling as “egregiously wrong” and “deeply damaging,” echoing rhetoric used by conservative justices in overturning other precedents.
The challenge extends beyond marriage equality to the broader mechanism through which the Court has recognized unenumerated rights, including parental rights, contraception access, and privacy in intimate relationships. Success here could affect numerous constitutional protections beyond marriage.
Staver’s argument, rooted in originalist interpretation, contends that Obergefell “lacks any basis in the Constitution,” rejecting judicial recognition of rights not explicitly enumerated in the text. This stance aligns with conservative justices such as Clarence Thomas and Samuel Alito, prioritizing historical meaning over evolving interpretations.
By labeling substantive due process as the source of “atextual constitutional rights,” the petition confronts decades of Supreme Court jurisprudence that have expanded individual liberties. If upheld, this could have far-reaching implications for rights relying on similar reasoning.
Academic and judicial critiques of substantive due process, particularly from conservative scholars, have coincided with the Court’s conservative majority, creating an environment where previously settled constitutional questions may be revisited.
Religious Liberty Versus Civil Rights Tension
The Davis case crystallizes tensions between religious liberty and civil rights protections. Supporters argue government employees should not be forced to violate religious convictions while performing official duties. Civil rights advocates counter that public officials cannot selectively refuse to enforce laws based on personal beliefs.
Davis’s legal team pushes the debate beyond individual conscience, raising questions about faith in public life and the extent religious believers can maintain convictions in government service. The case also touches on the scope of religious accommodations in public employment, potentially affecting public officials whose faith conflicts with official duties.
Legal scholars note the case implicates both the Free Exercise and Establishment Clauses of the First Amendment, highlighting the delicate balance between religious accommodation and government neutrality. Broader implications could extend to businesses, healthcare providers, and other service sectors claiming religious exemptions from anti-discrimination laws protecting LGBTQ+ individuals.
Supreme Court’s Conservative Shift Creates Uncertainty
Since Obergefell in 2015, the Court has gained three conservative justices appointed by former President Donald Trump, establishing a solid conservative majority willing to overturn longstanding precedents. Justice Clarence Thomas, critical of substantive due process, has specifically suggested reconsidering decisions like Obergefell in his concurring opinion in Dobbs.
The precedent set by Dobbs—overturning a long-established constitutional right—provides a potential framework for challenging Obergefell. Yet other justices may hesitate, mindful of marriage equality’s broad public acceptance and the significant social disruption a reversal could create.
Institutional concerns about public perception and legitimacy may also influence the Court, as additional controversial rulings could further politicize the judiciary.
Legal Experts Assess Likelihood of Success
Legal scholars are divided on Davis’s prospects. Most are skeptical the Court would fully overturn marriage equality, even with a conservative majority. Daniel Urman of Northeastern University suggests the Court might expand religious objector rights without eliminating marriage equality entirely—a middle-ground approach.
Paul Collins of UMass Amherst notes that procedural aspects of Davis’s case, centered on damages rather than the validity of marriage rights, could limit its effectiveness as a vehicle for overturning Obergefell. The consensus among experts is that a narrower ruling accommodating religious liberty is more likely than a full reversal.
Public Opinion and Cultural Context
Since 2015, public support for same-sex marriage has grown consistently across demographics, creating a political environment distinct from other controversial issues like abortion. Marriage equality is embedded in American social and legal institutions, with hundreds of thousands of couples married, raising children, and building families under legal protections.
Corporate America broadly supports LGBTQ+ inclusion, offering spousal benefits and promoting diversity, adding another layer of political pressure to maintain marriage equality. Religious communities are also divided, with some denominations embracing equality while respecting traditional perspectives. Generational trends indicate that support for LGBTQ+ rights will likely continue growing.
Potential Consequences of Overturning Obergefell
A reversal of Obergefell would return marriage policy to individual states, creating a patchwork of laws. Some states would maintain protections, while others could restrict or refuse recognition of same-sex marriages.
Practical consequences include impacts on interstate mobility, employment, family planning, federal benefits, and legal protections for existing marriages. Economic consequences could involve insurance, inheritance, and property rights, while legal uncertainty would likely result in extensive litigation.
Religious Liberty Implications Beyond Marriage
Expanded religious liberty protections could affect public employment, healthcare, education, and private businesses. Healthcare providers could claim exemptions from providing care conflicting with their faith. Educators and administrators might seek exemptions from inclusive policies, while wedding and service providers could refuse LGBTQ+ customers. These developments could broadly influence civil rights enforcement in employment, housing, and public accommodations.
Strategic Considerations for Court Acceptance
The Supreme Court’s decision to hear Davis’s case involves multiple strategic considerations: caseload, public perception, procedural clarity, and timing. The Court may prefer cases that present constitutional questions clearly and wait for ideal circumstances before taking controversial issues. Coalition support through amicus briefs could also shape the Court’s decision to grant review.
Conclusion: Constitutional Democracy at a Crossroads
Kim Davis’s challenge transcends a single legal dispute, raising fundamental questions about constitutional interpretation, religious liberty, civil rights, and the stability of established legal precedents. The conservative majority’s willingness to overturn precedent creates uncertainty about marriage equality’s future.
A ruling overturning Obergefell could impact numerous rights grounded in substantive due process, including contraception, parental authority, and intimate relationship privacy. Religious liberty arguments highlight cultural tensions over faith in public life and exemptions from generally applicable laws, with implications spanning healthcare, education, and public accommodations.
Practical consequences for same-sex couples would be immediate and profound, affecting legal, economic, and social stability. The Court’s decision will reflect how the conservative majority balances constitutional philosophy with social realities and institutional legitimacy.
Regardless of the outcome, the Davis case underscores the ongoing tension between religious liberty and civil rights, shaping American constitutional law for generations. It tests whether rights once established can endure in the face of evolving judicial philosophy, political pressure, and societal change.