‘A long game:’ U of M Assistant Professor of Law addresses request to overturn landmark same-sex marriage ruling

MEMPHIS, Tenn. (WMC) - The Supreme Court was formally asked to overturn the landmark same-sex ruling 10 years after SCOTUS extended marriage rights to all same-sex couples.

“This is a long game. Nothing has happened. Nothing’s changed. Marriage, same-sex marriage are valid. Obergefell is still the law of the land,” said Regina Hillman, an assistant professor of law at the University of Memphis.

Kim Davis, a former Kentucky County Clerk who refused to issue marriage licenses to a gay couple on religious grounds, appealed the jury verdict for emotional damages and attorneys’ fees.

“Shock. Aww. A lot of that and anger obviously. My phone has been blowing up with a lot of people panicked and scared,” said Vanessa Rodley, the president of Mid-South Pride.

Rodley said the request has sparked strong emotions and uncertainty for the LGBTQ+ community because of recent rulings. Some of which include the Supreme Court upholding a Tennessee law prohibiting gender-affirming care and the decision to overturn Roe v. Wade.

“There’s thousands of petitions that the Supreme Court receives every year requesting that the court hear a case. About one hundred of those are granted certiorari. So, the majority, the vast majority of petitions are denied,” said Hillman.

Hillman said after receiving Davis’ petition, they asked the litigants, Moore and Ermold, to file a response to the petition by October 8. Hillman said it could take time before we find out if the justices will take up the case.

Hillman said even if the justices take the case and the ruling is overturned, there is still some protection with the Respect for Marriage Act passed in 2022.

“Any state that permits marriage, so any state that still has marriage equality, other states have to recognize those marriages,” said Hillman.

Hillman said that means while Tennessee has constitutional amendments and statutes where it wouldn’t perform same-sex marriages, the state would have to recognize any out-of-state valid same-sex marriage.

“I know it’s really hard, and here in the South it’s even harder,” said Rodley. “We are here. We’re not going away, and if we lose them tomorrow, we’ll gain them back next week.”

Davis was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple on religious grounds. She is appealing a $100,000 jury verdict for emotional damages and attorney fees of $260,000.

In the petition filed, Davis argued for First Amendment protection for free exercise of religion, which immunizes her from personal liability for the denial of marriage licenses.

“She also claimed qualified immunity. Qualified immunity is a doctrine that protects government officials from liability in civil lawsuits unless they’re conduct violates clearly established statutory or constitutional rights and a reasonable person would have known that their actions were unlawful,” said Hillman.

Davis also claims the high court’s decision in Obergefell v. Hodges, which extended marriage rights for same-sex couples under the 14th Amendment’s due process protections, was wrong.

“In the Obergefell decision, the court recognized that there will still be many people who saw same-sex marriage as wrong based on religious or philosophical premises, but that did not give a person a right to transfer from personal opposition into enacted law or public policy,” said Hillman.

Rodley said she thinks about how this is going to impact future generations if the ruling is overturned.

“I’m already legally married. So, this won’t affect me at all, but this will affect other people in our community and moving forward. So, you know, we should be angry. We should be outraged. We should voice our complaints. We need to tell our public officials how we feel about it, and we need to elect public officials that actually want to support our beliefs and values,” said Rodley.

Rodley said the political climate has also encouraged same-sex couples to get married sooner.

“That’s actually been happening all year. I know a lot of people who, as soon as the election happened, went out there and got married. I know people who got married right before the beginning of the year, and like so, yes, there are people out there doing that,” said Rodley.

Rodley shared a message for the LGBTQ+ community.

“Stay positive. Even though they take this away, let’s work hard and get it back. Unfortunately, that’s what we have to do, but we’ll do it and we have done it and we’ll continue doing it,” said Rodley.

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