On November 10, 2025, the Supreme Court declined to hear the case of Kim Davis, a Kentucky clerk who refused to provide marriage licenses to same-sex couples.
In 2015, the Supreme Court decided Obergefell v. Hodges (often referred to simply as Obergefell), which legalized same-sex marriage across the country. Many city, town, or county clerks across the country, who are the people who issue marriage licenses, refused to issue licenses to same-sex couples. Kim Davis, the clerk for Rowan County in Kentucky, was one of these people, citing her religious opposition to same-sex marriage. (Supposedly, there are some localities where clerks are still refusing, though I’ve had a hard time confirming this.) At the time, Kentucky required clerks’ names to be on any licenses, and Davis specifically refused to let her name be on the license for a same-sex couple. Kentucky has since amended this law to not require clerks’ names to be on the license.
In 2017, Davis denied a marriage license to David Moore and David Ermold. (I have seen conflicting accounts of if Moore and Ermold were getting married to each other, or were two plaintiffs in the same situation but from different couples; this does not make too much difference for the case, however.) Moore and Ermold sued, and a local court ordered her to issue the license. Davis continued to refuse, and she was jailed for six days for contempt of court. Moore and Ermold received their license (or licenses; again, I am unclear about if they were getting married to each other or other people) while Davis was jailed, but continued to sue her for damages.
Davis cited qualified immunity as the reason for her actions. Qualified immunity shields some categories of government officials from liability for violating a right not firmly established by law or the Constitution. Lower courts sided with Moore and Ermold, awarding the plaintiffs damages and attorneys’ fees. This case was filed two years after Obergefell, so they considered same-sex marriage well-established.
Davis continued to appeal to higher courts, citing religious freedom under the First Amendment. The Sixth Circuit Court of Appeals denied this appeal. They ruled that, while Davis had a right to her beliefs, they did not authorize her to take government action to affirm her beliefs. Given her position as a government official, any action she took would be a government action to affirm specific religious beliefs.
In 2025, Davis filed a petition for certiorari to the Supreme Court, asking them to take up the case. While this petition continued the arguments for religious freedom, it also introduced a broader challenge to Obergefell. On November 10, the Supreme Court denied this. The case has been returned to the lower courts for Moore and Ermold to pursue damages.
The case was decided without formal hearings, though notably this was not a shadow docket decision (as has sometimes been reported). Shadow docket decisions refer to the decisions in cases that the Supreme Court agreed to hear but that did not have formal hearings or a standard brief. However, for the Supreme Court to hear a case, it needs to grant a writ of certiorari (often called “granting cert”). This just says that they will take up the case. Writs of certiorari are granted without hearings because the decision is on whether they will hear the case. The Supreme Court did not grant cert, which means the case can no longer be appealed, but it isn’t the same as a shadow docket decision, where cert was granted but no hearings were held.
This is something that I have seen circulating, particularly in right-leaning spaces, as a means of challenging this decision, so I wanted to dispel that up front. You can disagree with the decision not to grant cert, or think that the process of granting cert has its own issues. I would agree with you. But it is a separate issue from the increase in cases on the shadow docket.
Reactions to the case have been mixed. LGBTQ+ advocacy groups have been unsurprisingly positive about the decision, citing its affirmation of same-sex marriage. Reverend Fred Davie of the Union Theological Seminary, and formerly the US Commission on International Religious Freedom, also celebrated this decision, saying in a comment to Newsweek that he is “relieved that the Supreme Court decided not to hear the Davis case,” stating that “people of faith… must stay vigilant and faithful to the task of offering hope and thwarting hate, however and wherever it emerges.”
Others, such as John Culhane of Delaware Law School (also speaking to Newsweek), said that this case was never likely to succeed: “You didn’t have the votes to overturn Obergefell. We have a very unsympathetic petitioner here—someone who openly defied the law and withheld marriage licenses… [with] no valid reason for denying couples the licenses they were entitled to.” Culhane also noted how several Justices, such as Amy Coney-Barrett, have cited that Obergefell would be difficult and destabilizing to overturn, given how many marriages and families are built on that decision, as a reason he expected Davis to be unsuccessful. Culhane did express some sympathy for Davis, as the damage amounts awarded to the plaintiffs will likely be hard for her to pay, and potentially put her into bankruptcy.
However, Mat Staver, the founder of the Liberty Counsel and lawyer for Davis, said in an email to Newsweek that “Liberty Counsel will continue to pursue future cases to overturn Obergefell.” He indicated that “[t]he fact that the Court did not take up this case will result in others like Kim Davis coming forward to challenge Obergefell… The days of Obergefell are numbered.” He said their next strategy would be to encourage and assist “other individuals, states, and local governments [to] assert their rights to religious liberty and the Tenth Amendment.”
For now, though, Obergefell and same-sex marriage are intact, and localities cannot deny these protections due to religious convictions.