SCOTUS Building, Washington DC / Envato

by Emmitt Barry, Worthy News Washington D.C. Bureau Chief

(Worthy News) – In a disappointing setback for religious freedom advocates, the U.S. Supreme Court declined without comment to hear former Kentucky county clerk Kim Davis’s challenge to the 2015 Obergefell v. Hodges decision, leaving in place a $360,000 judgment against her for following her Christian faith.

Davis, who served as clerk in Rowan County, became a national figure in the religious liberty movement when she refused to issue marriage licenses to same-sex couples following the controversial Obergefell ruling. Acting on her deeply held religious convictions and in accordance with Kentucky state law at the time—which recognized marriage as between one man and one woman—Davis maintained she was serving “under God’s authority.”

For standing on her principles, Davis spent six days in jail and now faces financial ruin. A federal jury awarded David Ermold and David Moore $100,000 in compensatory damages for what her attorney characterized as “purported hurt feelings,” with an additional $260,000 in attorney fees piled on top.

Davis’s petition to the high court argued that the Obergefell decision itself should be overturned, asserting that “the Constitution makes no reference to same-sex marriage and no such right is implicitly recognized by any constitutional provision.” Her legal team at Liberty Counsel challenged the doctrine of “substantive due process”—the same legal theory that propped up Roe v. Wade for nearly 50 years before the Court courageously overturned that precedent in 2022’s Dobbs decision.

“Obergefell should be overturned because the Constitution makes no reference to same-sex marriage,” Davis told the justices, drawing parallels to the abortion case that the Court successfully reconsidered after decades of judicial activism.

Conservative legal scholars have long criticized substantive due process as a “legal fiction” that allows judges to manufacture constitutional rights nowhere found in the nation’s founding document. Justice Clarence Thomas has been particularly vocal on this issue, writing in the Dobbs opinion that the Court has “a duty to ‘correct the error’ established in those precedents” that rely on demonstrably erroneous substantive due process reasoning.

Mat Staver, chairman of Liberty Counsel and Davis’s attorney, expressed disappointment but remained resolute. “Davis was jailed, hauled before a jury, and now faces crippling monetary damages based on nothing more than purported hurt feelings,” he said. “This cannot be right because government officials do not shed their constitutional rights upon election.”

Staver drew a direct line between Obergefell and Roe, both decided on faulty constitutional grounds. “Like Roe v. Wade, which the Supreme Court overturned in 2022, the Obergefell ruling was egregiously wrong from the start,” he declared. “It is not a matter of if, but when the Supreme Court will overturn Obergefell.”

The Court’s refusal to hear the case is particularly troubling given that three justices who dissented in Obergefell—Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito—remain on the bench. It would have taken only four justices to grant the petition and hear oral arguments.

Critics note that while Kentucky eventually passed legislation allowing clerks’ names to be removed from marriage licenses—a reasonable accommodation Davis requested from the beginning—she was still forced through years of legal persecution. The lower courts stripped her of governmental immunity and rejected her First Amendment religious expression defense, setting a dangerous precedent for public officials of faith.

The decision stands in stark contrast to the Court’s willingness to reconsider Roe after 49 years of reliance on that precedent. While Obergefell has only been on the books for eight years, the Court missed an opportunity to correct what many constitutional originalists view as another example of judicial overreach.

For now, religious liberty advocates must wait for another opportunity to challenge a ruling that redefined marriage contrary to millennia of human history and without clear constitutional authority. As Staver noted, the question is not if, but when.

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