If it chooses to, the U.S. Supreme Court now has a pathway to reconsider its landmark 2015 ruling that legalized same-sex marriage nationwide.
If it does it, the court will fulfill the dream of conservative evangelicals — including Southern Baptists — who remain outliers among Americans in their opposition to same-sex marriage. Messengers to the Southern Baptist Convention in June enthusiastically adopted a resolution calling on the overturn of Obergefell vs. Hodges.
Kim Davis, a former Kentucky county clerk who was jailed in 2015 after being held in contempt for refusing to issue marriage licenses to same-sex couples, is asking the high court to reconsider the 2015 ruling.
A jury fined Davis $360,000 for refusing to file legal marriage licenses. She is appealing that verdict to the Supreme Court and using her case as potential leverage to overturn Obergefell.
In a petition for writ of certiorari, she claims First Amendment protection for free exercise of religion immunizes her from personal liability for denying marriage licenses to couples based on her own personal religious beliefs. At the same time, she claims the court’s 2015 decision was “egregiously wrong” and should be reconsidered.
Rowan County Clerk Kim Davis, right, talks with David Moore following her office’s refusal to issue marriage licenses at the Rowan County Courthouse in Morehead, Ky. Although her appeal to the U.S. Supreme Court was denied, Davis still refuses to issue marriage licenses. (AP Photo/Timothy D. Easley)
Her case presents just the kind of opening evangelicals have sought to tee up a full court reconsideration of Obergefell, which at least three conservative justices have said they want. Davis is represented by Liberty Counsel, the evangelical legal advocacy group that successfully represented Hobby Lobby Stores in its case challenging the Affordable Care Act’s contraception mandate on religious freedom grounds.
Such cases are the stock in trade of Liberty Counsel and Alliance Defending Freedom and First Liberty Institute — a trio of legal advocacy groups working to get cases before the Supreme Court in hopes of advancing an evangelical worldview. This overall effort has resulted in a redefinition of the First Amendment with a tilt toward protecting free exercise of religion over preventing government establishment of religion.
Mat Staver of Liberty Counsel said Davis’ case “underscores why the U.S. Supreme Court should overturn the wrongly decided Obergefell v. Hodges opinion, because it threatens the religious liberty of Americans who believe that marriage is a sacred union between one man and one woman.”
Evangelicals as outliers
Although some evangelicals think American law should reflect their religious beliefs, other Americans say federal law should not be driven by the religious dictates of one group.
Currently, 68% of all Americans support legalized same-sex marriage, but Republican support — which peaked at 55% in 2021 and 2022 — has dropped to 41%, the lowest point since 2016, according to Gallup.
Support among Democrats has risen to 88%, a record high. Support among independents has been relatively stable and currently stands at 76%. It is Republicans only who are the dissenters. The current 47-point gap between Republicans and Democrats is the largest since Gallup first began tracking this measure 29 years ago.
According to Pew Research Center, 85% of white evangelicals identify with the Republican Party or lean Republican, as do 58% of nonwhite evangelicals. Pew says over the past three decades, there has been a 20-point rise in the share of white evangelicals who associate with the GOP. About one-third of those who identify as Republicans today are white evangelicals, according to PRRI.
SBC resolution
In June, SBC messengers adopted Resolution No. 5, titled “On Restoring Moral Clarity through God’s Design for Gender, Marriage and the Family,” which uses opposition to Obergefell as the linchpin for a theological statement on the created order, marriage, abortion, fertility, family, gender, sexual orientation, free speech and miscarriage.
This resolution embodies a virtual wish list of conservative evangelical issues that have been thrust upon the Republican Party in national politics. And it calls for absolute overthrow of Obergefell.
“Legal rulings like Obergefell v. Hodges and policies that deny the biological reality of male and female are legal fictions, undermine the truth of God’s design, and lead to social confusion and injustice,” the resolution declares.
It calls for “the overturning of laws and court rulings, including Obergefell v. Hodges, that defy God’s design for marriage and family.”
Civil rights activist Jim Obergefell is seen before an event marking the 100th birthday of civil rights activist Frank Kameny outside the U.S. Supreme Court May 21, 2025. (Francis Chung/POLITICO via AP Images)
Is this an outlier?
While Davis’ case may seem like an outlier, so were cases brought by other plaintiffs brought to national attention through these evangelical groups — including a baker who refused to make cakes for same-sex weddings and a high school assistant football coach who wanted to hold prayer meetings on the 50-yard line after games.
Now, Matt Staver of Liberty Counsel wrote of Obergefell in his petition to the high court: “The mistake must be corrected.”
Staver called Anthony Kennedy’s majority opinion in Obergefell “legal fiction.”
Thus, Davis’ challenge of her individual penalties is a conduit for a larger agenda to get before the court, which is far more conservative today than it was in 2015.
What if?
Although the high court has not yet indicated whether it will take up Davis’ case, the mere possibility has raised alarms among the LGBTQ community and its allies. They fear a parallel to what happened in the court suddenly overturning Roe v. Wade.
Should Obergefell be overturned as a national mandate, the matter would fall once again to state discretion. Currently, 32 states have laws on the books that would ban same-sex marriage.
However, even those states still would have to recognize unions already legally performed. In 2022, President Joe Biden signed the Respect for Marriage Act, which overturned the 1996 Defense of Marriage Act and ensured federal recognition of same-sex and interracial marriages. However, that law does not force states to issue marriage licenses to same-sex couples.
Paul Collins, professor of legal studies and political science at the University of Massachusetts Amherst told Newsweek: “Conservative Christians are serious about getting the Court to reconsider Obergefell. This case is being brought by Liberty Counsel, a Christian legal organization. If the court denies Davis’ petition — which I think it will — this won’t be the end of the battle against same sex marriage and LGBTQ rights more generally.”
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