By Attorney Emily Dudak Leiter

The Law Center for Children & Families

Madison, WI

Here is a summary and our opinion regarding the petition for review by Kim Davis and Liberty Counsel to SCOTUS.

Kim Davis is the former Kentucky county clerk who refused to issue marriage licenses in 2015 to same-sex couples on religious grounds. Her attorneys in the petition for review are Liberty Counsel, which is a right-wing Christian organization designated as a “hate group” by the Southern Poverty Law Center: https://www.splcenter.org/resources/extremist-files/liberty-counsel/.

Davis and Liberty Counsel are appealing a civil verdict against Davis for $360,000 in damages. (One of the couples who was refused a marriage license in 2015 sued her.) Together, Davis and Liberty Counsel are asking SCOTUS to overturn that verdict because they say Davis has a right to follow her “deeply held Christian beliefs” and not do her job, even as a government employee. This would, of course, cause chaos in government. It is very different from a bigoted private citizen cakemaker refusing to make a wedding cake. See Masterpiece Cake Shop.

Kim Davis’s lawsuit has been going on for years. However, it has not been on our collective radar regarding marriage equality because it is a procedurally odd case in which to ask for a review of Obergefell, versus an extension of the Masterpiece Cake Shop religious exception doctrine. That doctrine is focused on the balance between (a) the right to be free from discrimination, and (b) the right to express bigotry through the practice of organized religion.

Fortunately, the petition for review by Davis and Liberty Counsel is a long shot, a few times over. First, we believe SCOTUS is unlikely to grant review of the case. It is an unclean case procedurally for their agenda. Activist judges and organizations like cases set up just so, so that the decisions have broad reach, for example in Citizens United andDobbs. SCOTUS will consider whether to grant review of the case in fall 2025, and if granted, the decision would probably come in summer 2026.

Second, even if SCOTUS grants review, the case should be decided at the narrowest level: in very basic terms, whether Masterpiece Cake Shop can apply to government officials. Keeping it narrow is allegedly what conservative judges like to do: only decide the issue squarely before the court and nothing else. Do not go beyond that and be an “activist judge.” In other words, SCOTUS may consider whether to extend the cake case to government employees and ignore the attack on Obergefell altogether.

The worst-case scenario, of course, is that the Davis and Liberty Counsel case is accepted for review and Obergefell is overturned. Actually, even worse and broader than that, they ask SCOTUS to overturn all substantive due process/fundamental rights under the 5th and 14th Amendments, e.g., the right to parent your children, the right to refuse medical treatment, the right to have consensual sex however and with whomever you want, the right to birth control, the right to marry someone of a different race, the right to make health care decisions (not just reproductive ones), and more. That is absurd, highly and ironically activist, and terrifying.

However, even if Obergefell does fall with this new case or in a future case, existing marriages are likely to survive. In addition, the Respect for Marriage Act by Senator Tammy Baldwin would slow down the repercussions, allowing us time to react legislatively and otherwise (although sadly, the Respect for Marriage Act would likely be found unconstitutional if Obergefell and the fundamental right to marry were overturned).

With this Davis and Liberty Counsel case in mind, we continue to recommend the following:

  1. Court orders confirming equal parental rights of children of LGBTQ+ parents, no matter what the birth certificates say; and
  1. Detailed life and estate planning with an attorney who understands queer concerns and issues. An important provision for all documents is one that anticipates the fall of Obergefell and makes clear that the documents shall survive whether or not the marriage is being respected and recognized.

These two things can provide incredible security from all this hate. More information about these recommendations can be found on our website: https://lawcenterwisconsin.com/protecting-lgbtq-families-in-wisconsin-after-the-2024-election/.

No matter the outcome of this petition for review, The Law Center will continue to fight for and protect the beautiful families we have the honor to represent.

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