Update Regarding Davis V. Ermold And Moore

Here is an update from Attorney Emily Dudak Leiter of The Law Center, S.C., regarding Davis v. Ermold and Moore:

As most have heard already, the U.S. Supreme Court declined to hear the appeal constructed by Kim Davis and Liberty Counsel, which was attempting to overturn Obergefell and marriage equality. The Supreme Court declined to review the case last week, and they did so without comment. That is a huge relief. That means nothing is imminent.

I wanted to take a few days to feel that relief and exhale, before I let the cynical lawyer part of my brain take over. Here is what that part of my brain wants to say now, especially after seeing the different headlines. By declining to take the case, SCOTUS did not “uphold” or “affirm” marriage equality, sadly. Instead, they declined to review a case that was procedurally flawed and where the appellant, Kim Davis, had a major standing issue. In other words, it wasn’t the right case for their agenda.

When I wrote a summary of the Davis and Liberty Counsel case a few months ago, while the petition for review was pending, I predicted the Court would deny review, but not for optimistic reasons. That prediction was based, in part, on the statement from the Supreme Court in 2020 when they denied review of this same case for the first time. Please read the Court’s statement. They explained their denial of review that time. It is hard to read, but I think the LGBTQ+ community should read the actual words of their government officials, without media interference or interpretation. Here it is: https://www.supremecourt.gov/opinions/20pdf/19-926_5hdk.pdf. It is just a few pages.

If you don’t want to read it, here is an excerpt, written by Justice Clarence Thomas with Justice Samuel Alito joining: “This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of cer­tiorari. Nevertheless, this petition provides a stark re­minder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious lib­erty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will con­tinue to have ‘ruinous consequences for religious liberty.’ 576 U. S., at 734 (THOMAS, J., dissenting).”

That is the actual state of marriage equality in this country. As for this particular case, Kim Davis lost. She must pay the judgment entered against her. She does not get her name on the case that brings down marriage equality. That is deeply satisfying. But I am starting to believe, sadly, that the Supreme Court is lying in wait, ready to pounce on a procedurally clean case. I hope I’m wrong. In the meantime, we can do something: speak up in support of marriage equality and other fundamental rights being threatened right now. Historically, Supreme Court precedents go through cycles and are influenced by societal opinion. It can make a difference.