TENNESSEE (WKRN) — In 2015, Obergefell v. Hodges answered the question: Can same-sex couples marry anywhere in the United States? The Supreme Court said yes, making Tennessee’s voter-approved constitutional ban, passed in 2006, unenforceable.
But that doesn’t mean the ban disappeared. It’s still written into the state constitution. It simply can’t be enforced unless Obergefell v. Hodges is overturned.
Now, that landmark ruling faces a real threat.
This fall, the Supreme Court will decide whether to take up a case out of Kentucky that explicitly asks the justices to reverse Obergefell v. Hodges
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A day after the 2015 decision, then-Rowan County Clerk Kim Davis refused to issue marriage licenses to same-sex couples, citing her religious beliefs. She served five days in jail for contempt of court.
Now, Davis is petitioning the Supreme Court to wipe away a 2023 judgment ordering her to pay hundreds of thousands of dollars in damages and legal fees to a couple she turned away. In her filings, she goes further, asking the justices to overturn Obergefell v. Hodges entirely.
Attorney Abby Rubenfeld, who helped lead the Tennessee case that became part of Obergefell v. Hodges, said Davis’s legal argument is misleading.
“She was not jailed because of her religious beliefs,” Rubenfeld said. “She was jailed because she refused to follow the law and do her job that she was being paid to do for the public.”
Rubenfeld said this was the wrong fight for the wrong reasons, arguing the real question is whether sanctions against Davis were appropriate after she knowingly violated the law.
Some Tennessee lawmakers welcome the chance to challenge the 2015 decision.
“Obergefell was an egregiously wrong decision,” Rep. Gino Bulso (R-Brentwood) said.
Even if the Supreme Court overturned marriage equality, a 2022 law signed by President Biden would still require Tennessee to recognize same-sex marriages performed in other states.
Rubenfeld said that protection is narrow.
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“With this Supreme Court, who knows what they’ll do,” she said.
If Obergefell v. Hodges falls, Rubenfeld warns Tennessee could immediately stop issuing marriage licenses to same-sex couples.
“It would be an incredible morass of problems,” she said. “Like me and my wife — we’ve been married since 2008, and we file joint taxes. Do we have to go back and refile and pay a lot of money? No, I’m not doing that. That’s ridiculous.”
The Supreme Court takes up only a fraction of petitions each year, and it hasn’t said if it will hear this one. Until then, Obergefell v. Hodges remains the law of the land, and same-sex marriage remains legal in Tennessee.
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