Is Kim Davis the right wing's vehicle for overturning marriage equality?

COMMENTARY
Is Kim Davis the right wing’s vehicle for overturning marriage equality?
The right-wing law group defending the KY county clerk thinks the Supreme Court could use a lawsuit against her to overturn same-sex marriage.
Commentary by John Gallagher (he/him) Monday, September 18, 2023

However, Mat Staver, the head of Liberty Counsel, says that he’s looking forward to appealing Davis’ case all the way to the Supreme Court. While that may sound like a vain hope, Justices Thomas and Alito’s calls to reconsider Obergefell were tied specifically to Davis.

In 2020, Davis and Liberty Counsel asked the Supreme Court to declare that she had qualified immunity as a county clerk, the same kind of protection that allows police officers from being sued as individuals in civil cases involving their actions as cops. The Court rejected the argument, but Thomas, in an opinion joined by Alito, issued a very sympathetic response, saying that Davis “may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.”

“This petition provides a stark reminder of the consequences of Obergefell,” Thomas wrote. “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.”

In short, let us fix it.

Staver is convinced that the Respect for Marriage Act, signed into law by President Joe Biden last year, ironically provides just the vehicle to overturn marriage equality. He argues that the measure essentially returns the matter of marriage licenses to the states, which can then decide what they want to do. That argument conveniently echoes the line of reasoning used by the right in overturning Roe v. Wade. States can now set whatever limits they want on a woman’s right to choose.

In Staver’s universe, states could stop issuing marriage licenses to same-sex couples, although existing marriages would be grandfathered in. He doesn’t speculate on whether states would be required to recognize those marriages, and he conveniently omits any mention of the other part of the Respect for Marriage Act – protecting interracial marriages.

Just to give you an idea where Staver is coming from, he said that the Respect for Marriage Act would lead to “pedophilic marriages.”

However, Liberty Counsel also has an in at the Court. A report in Rolling Stone said that some of the justices have actually prayed with the leader of the ministry that is under the umbrella of Liberty Counsel.