Same-Sex Marriage Revisited: Davis v. Ermold

An analysis of Davis v. Ermold

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Published December 20th, 2025

Written by Chloe Song

The Supreme Court of the United States is currently deliberating whether to revisit the 2015 decision that declared a constitutional right to same-sex marriage again, according to The New York Times. In the case of Davis v. Ermold, Kim Davis, a former Kentucky county clerk, was “jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple on religious grounds [and] is appealing a $100,000 jury verdict for emotional damages plus $260,000 for attorney fees,” according to ABC News. According to SCOTUSblog, Davis petitioned a writ of certiorari on July 24th, 2025, arguing three points. First, that her religious beliefs are protected by the First Amendment and should shield her from liability for emotional distress damages as in Snyder v. Phelps. Second, Davis argued that though she was a government official, she was entitled to assert personal First Amendment defenses because she was sued in her individual capacity. Third, that Obergefell v. Hodges and substantive due process should be overturned.

In a 5-4 decision in 2015, the United States Supreme Court declared in Obergefell v. Hodges a constitutional right to same-sex marriage. Obergefell v. Hodges asks two key questions, according to Oyez—whether the 14th Amendment obliges states to issue marriage licenses to same sex couples and whether it requires states to recognize same-sex marriages legally performed in other states. Justice Anthony M. Kennedy wrote the majority decision, stating that the Due Process Clause of the 14th Amendment protects the right to marry as a fundamental liberty of individual autonomy, which extends to same-sex couples. The ruling also invoked the Equal Protection Clause, as denying the right to marriage to same-sex couples would constitute unequal treatment under the law. While states are not permitted to deny same-sex couples marriage, the First Amendment protects the right of religious organizations to follow their beliefs according to Obergefell v. Hodges.

Davis’ petition questions the intersection of religious liberty, governmental duties and constitutional precedent. The Court will need to examine whether an individual’s religious beliefs can excuse them from legal consequences when the resulting harm is limited to emotional distress. To support this, Davis cites Snyder v. Phelps, where the Supreme Court held “the First Amendment protects protestors at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased,” according to Oyez. This precedent is relevant to Davis’ argument because it suggests that the Supreme Court may be reluctant to impose liability for emotional distress when First Amendment rights are at stake, even if the harm caused is significant. The Court’s reasoning in Snyder v. Phelps highlights how the protection of free speech can outweigh claims of emotional injury, meaning that express hurtful conduct may be shielded from responsibility. The Court will also have to address whether a government official sued in their individual capacity can assert personal First Amendment protections in the same way a private citizen might. Finally, the petition challenges same-sex marriage itself, questioning whether Obergefell v. Hodges is constitutionally sound.

According to SCOTUSblog, on Friday, November 7th, the Supreme Court Justices will start to discuss petitions, including Davis v. Ermold. If the Supreme Court decides to hear Davis v. Ermold, the constitutional and legal implications could be far-reaching. A ruling in favor of Davis could expand First Amendment rights for public officials and open the door to revisiting Obergefell v. Hodges. Conversely, rejecting the petition would reaffirm marriage equality under the 14th Amendment and limit religious exemptions for government officials. Until SCOTUS grants or denies Davis’ petition, the scope of the Free Exercise Clause and the durability of same-sex marriage rights are in a state of uncertainty.

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