Will Supreme Court Consider Overturning Same-Sex Marriage Ruling? First Amendment Attorney Weighs In

Forbes Breaking News

A case was filed at the Supreme Court last month asking the court to overturn the landmark 2015 ruling that legalized same-sex marriage. Attorney Jeff Lewis joined "Forbes Newsroom" to discuss whether or not the Supreme Court will take up the case.

Transcript

00:00Hi, everybody. I'm Brittany Lewis, a breaking news reporter here at Forbes.

00:07Joining me now is First Amendment attorney Jeff Lewis. Jeff, thanks so much for joining me once

00:11again. Yeah, thanks for having me. I'm excited for you to make sense of this news because

00:16the story really begins 10 years ago. In 2015, the Supreme Court ruled that same-sex marriage

00:22was legal in the United States. Now, 10 years later, a case was filed in July asking the court

00:27to overturn this landmark ruling. So to start off the conversation, can you fill in the

00:32gaps for us here? How did we get here a decade later? Right. Now, 10 years ago, the court

00:37ruled that there was a constitutional right for same-sex marriages compelling every state

00:43and county employee to issue a marriage license when a same-sex couple applied for a marriage

00:49license. And this case that's in the news today is about a county clerk who refused to issue

00:55a marriage license in a same-sex case and was sued civilly. And she wants to challenge

01:00the resulting judgment from that case. That county clerk you mentioned is Kim Davis,

01:05and she is the person behind this case. If we can remember, she's a former county clerk

01:10from Kentucky who briefly wound up in jail back in 2015 because she refused to issue same-sex

01:15couples marriage certificates. And her asking the court to overturn Obergefell comes as part

01:20of a lawsuit that says she was discriminated against for refusing to issue these licenses

01:25to same-sex couples. So essentially, is this a case within a case?

01:30Yeah, in a sense. I mean, her primary legal challenge, which has been rejected below and

01:35rejected in the intermediate court, which is up before the Supreme Court now, is does a civil

01:40litigant like her, a civil defendant in a private lawsuit, have a First Amendment defense based

01:47on the free exercise of religion provision of the First Amendment? Does she have a defense to say,

01:52I can't be held liable in monetary damages for refusing to issue a certificate? That's the

01:58procedural process, uh, posture of this case. And it's very, very unusual.

02:04And she said that signing those certificates would violate her religious beliefs. She's citing the First

02:10Amendment, saying that that's protected. In the eyes of the law, how strong is her argument?

02:15It's not a great argument. Most commentators don't think she's going to get far with this

02:20cert petition. In the intermediate court, there was no real enthusiasm for her petition. But I will say

02:27this, at least one justice, I believe, has voted to require that she, that the other side in her

02:35dispute weigh in with a response to the cert petition. So we know at least one U.S. Supreme Court

02:41justice is interested in maybe hearing a little bit more about this dispute.

02:44I do want to talk about the justices because back in 2022, in a concurring opinion on the

02:49Dobbs case, which overturned Roe, Justice Clarence Thomas said that the court should reconsider

02:54Obergefell, which legalized same-sex marriages nationwide, since both rulings are based on the

02:59same legal argument. So does that indicate anything to you about whether or not the court will even

03:04hear this case?

03:05Well, it takes four justices to vote to hear a case. And you know, that was by Justice Thomas,

03:12the comment you just read. I'm certain he would vote. So he'd be one of the four. So the real

03:16question is, are there three other justices who would take the case? And then is there a majority?

03:21Are there five justices who would be willing to directly take on the Obergefell decision? I don't

03:28think there are five justices, but who knows?

03:31Do you think then there are four justices to hear this case even?

03:35It's possible. I will say this. The procedural posture of this case is odd. It's not somebody

03:39who's seeking a marriage license or directly affected. It's a civil litigant who was hit with

03:45a big damages award and wants to raise an obscure point of law about a First Amendment defense.

03:50I'm not sure this is the case that the U.S. Supreme Court wants to use as the vehicle for

03:54overturning a 10-year-old precedent.

03:57And do you think if it's not this case that there is a separate vehicle, a different vehicle

04:02for the Supreme Court to overturn gay marriage in the United States?

04:06There could be other cases with a more frontal direct challenge to the due process basis or

04:13analysis that the Supreme Court used to enact or validate same-sex marriages.

04:19In this case, the record is real poor, and you don't have a very good optics in terms of this

04:27defendant who was held liable by a jury for six figures and damages. I just don't think the

04:33Supreme Court's going to take this case, but there could be cases where somebody has a more direct

04:38interest in marriage or refusing marriage. And I could see the Supreme Court revisiting this precedent.

04:44And how much, in your opinion, does optics matter when the Supreme Court is taking up a case?

04:51Because based on polling in recent years, it doesn't seem like there's much national appetite

04:56for the Supreme Court to overturn gay marriage.

04:59Yeah, I don't think optics matter. And it used to be, before Dobbs, the institution matter,

05:05meaning even if justices felt like Roe v. Wade was wrongly decided,

05:09because of the institutional and longstanding history of Roe v. Wade, they weren't willing,

05:15they didn't have the collective willingness to challenge that direct precedent. But that

05:19institutionalism is not something you see a whole lot of in today's Supreme Court. And so you could

05:25see five justices who are willing to overturn a decision that's only 10 years old. And they might

05:32be thinking that now's the time to do it, depending on who's president next. Maybe the conservative

05:38leanings of this court are not going to be around forever.

05:42And Hillary Clinton recently predicted that the Supreme Court, quote, will do to gay marriage what

05:48they did to abortion. They will send it back to the states. Do you think that's the avenue that

05:53the Supreme Court would take?

05:56Well, let me just say this. They could grant this cert petition and give Ms. Davis what she needs

06:02without actually directly overturning an oboe or felon. So keep that in mind. But yeah,

06:10if they did overturn their prior decision from 10 years ago, it would return to the states. But

06:15Congress did pass a law that says each state has to respect the marriage licenses issued by other

06:22states. So it's not the complete end of same-sex marriage if the Supreme Court takes this action.

06:28Exactly. That passed, I believe, back in 2022 when it enshrines the right of marriage equality.

06:37I mean, how much does that matter here when it comes to the Supreme Court? Because even if the

06:41Supreme Court overturns Obergefell, then what happens?

06:46Right. So it provides a floor, if you will, a minimum guarantee for those people who are living

06:52in states that allow same-sex marriages that they could continue to seek such licenses.

06:56And then if they travel or move to a different state that doesn't allow for such marriages,

07:02that at least the certificates issued by a state that allows these marriages would be respected.

07:09So there is some floor, some minimum guarantees allowed for people who have obtained such licenses,

07:15but it leaves a lot of people out in the dark if they want to live in a state that doesn't allow

07:19same-sex marriages.

07:21And the Supreme Court hasn't acted yet, but I think there's two big questions.

07:26One, will they hear this case? Two, will the Supreme Court overturn same-sex marriage?

07:31And I think based on the conversation, you think, one, they could hear this case. Two,

07:36you might have a tougher time overturning that in the Supreme Court. I mean,

07:40is that, is that, am I characterizing that correctly?

07:43Right. If there's four votes to take the case up, they'll then have to decide what questions they're

07:47going to take up. Will it be the more narrow question of, should the civil litigant have an

07:51affirmative defense and a civil lawsuit for damages, which is very different than,

07:56is same-sex marriage legal? Or they could take the broader question and do a frontal assault and

08:02take on the question and directly reverse this 10-year-old precedent.

08:06And what specifically are you looking out for next?

08:09Well, it'll be interesting to see how the amicus parties line up in terms of who,

08:14which parties file amicus briefs. It'll be interesting to see how long this sits in conference

08:20in terms of how long it takes the Supreme Court to review this. And it'll also be interesting to see

08:24if there's other petitions that are filed that more directly, let's just say, present a more

08:30attractive vehicle for the Supreme Court to do what it wants to do here.

08:33Well, Jeff, there's certainly a lot to look out for. And as we see this develop, as we see even

08:39if the Supreme Court hears this case, I hope you can come back on and break it down with me.

08:44Thank you so much for joining me. You're welcome back anytime.

08:47Of course. Thanks for having me.

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