Opposition Brief — Kim Davis, Petitioner v. David Ermold, et al.

No. 25-125

IN THE

Supreme Court of the United States

KIM DAVIS,

v.

Petitioner,

DAVID ERMOLD AND DAVID MOORE,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

Michael J. Gartland

DELCOTTO LAW GROUP

PLLC

201 N. Upper St.

Lexington, KY 40507

Joseph D. Buckles

BUCKLES LAW OFFICE

149 N. Limestone

Lexington, KY 40507

William Powell

Counsel of Record

Kelsi Brown Corkran

Samuel P. Siegel

INSTITUTE FOR

CONSTITUTIONAL ADVOCACY

AND PROTECTION,

GEORGETOWN LAW

600 New Jersey Ave. NW

Washington, DC 20001

(202) 661-6629

whp25@georgetown.edu

Counsel for Respondents

i

QUESTIONS PRESENTED

In 2015, following the Court’s decision in Obergefell v. Hodges, 576 U.S. 644 (2015), petitioner Kim Davis, who was then the Clerk of Rowan County, Kentucky, “‘t[ook] the law into her own hands’” in “the

most extreme way.” Pet. App. 32a (Readler, J., concurring in part and in the judgment) (quoting Ermold

v. Davis, 936 F.3d 429, 442 (6th Cir. 2019) (Bush, J.,

concurring in part and in the judgment)). “Rather

than attempting to invoke a religious exemption for

herself, Davis instead exercised the full authority of

the Rowan County Clerk’s office to enact an official

policy of denying marriage licenses to same-sex couples, one every office employee had to follow.” Id. Over

the course of ten years, four appeals, and a trial, the

courts below concluded that when Davis denied a

marriage license to respondents David Ermold and

David Moore, she violated their constitutional right to

marry. She is therefore liable for damages under 42

U.S.C. § 1983 based on her actions taken under color

of state law.

The questions presented are:

(1) Whether government officials, when exercising

the state’s authority in the course of their official duties, may assert a First Amendment right to engage

in state action that violates the constitutional rights

of private citizens.

(2) Whether the Court should overturn Obergefell

v. Hodges, 576 U.S. 644 (2015), even though Davis expressly waived any intention to relitigate Obergefell

in this case.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES ..................................... iii

INTRODUCTION ...................................................... 1

STATEMENT OF THE CASE ................................... 4

REASONS FOR DENYING THE PETITION......... 13

I.

DAVIS’S FIRST AMENDMENT DEFENSE

DOES NOT MERIT REVIEW. ............................. 13

A.

The Petition Is a Poor Vehicle for

Addressing Davis’s First Amendment

Argument. .................................................. 14

B.

Davis’s First Amendment Argument

Conflicts with This Court’s Precedent. ..... 19

II. THE COURT SHOULD DECLINE DAVIS’S

INVITATION TO RECONSIDER OBERGEFELL...... 27

A.

This Case Is a Poor Vehicle for Revisiting

Obergefell. .................................................. 27

B.

Obergefell Should Not Be Overruled. ........ 30

CONCLUSION ......................................................... 37

iii

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ............................................... 35

California v. Texas,

593 U.S. 659 (2021) ............................................... 29

Carey v. Piphus,

435 U.S. 247 (1978) ............................................... 25

Conner v. Reinhard,

847 F.2d 384 (7th Cir. 1988) ................................. 25

Davis v. Ermold,

141 S. Ct. 3 (2020) ................................... 2, 9, 10, 27

Dep’t of State v. Muñoz,

602 U.S. 899 (2024) ............................................... 30

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ..............................30, 31, 34, 35

Ermold v. Davis,

855 F.3d 715 (6th Cir. 2017) ................................... 8

Ermold v. Davis, No. 15-cv-46,

2017 WL 4108921 (E.D. Ky. Sept. 15, 2017) .......... 8

Ermold v. Davis,

936 F.3d 429 (6th Cir. 2019) ...... i, 1, 8, 9, 12, 14, 18

Ermold v. Davis, No. 15-cv-46,

2022 WL 830606 (E.D. Ky. Mar. 18, 2022) ..... 10, 18

Ermold v. Davis, No. 22-5260,

2022 WL 4546726 (6th Cir. Sept. 29, 2022) ......... 10

Food & Drug Admin. v. R. J. Reynolds Vapor Co.,

145 S. Ct. 1984 (2025) ........................................... 16

iv

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ............................................... 35

Garcetti v. Ceballos,

547 U.S. 410 (2006) ............................................... 19

Groff v. DeJoy,

600 U.S. 447 (2023) ............................................... 15

Hafer v. Melo,

502 U.S. 21 (1991) ..................................... 22, 23, 24

Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258 (2014) ......................................... 32, 34

Hilton v. S.C. Pub. Rys. Comm’n,

502 U.S. 197 (1991) ............................................... 36

Imbler v. Pachtman,

424 U.S. 409 (1976) ............................................... 24

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ............................................... 15

Kimble v. Marvel Ent. LLC,

576 U.S. 446 (2015) ......................................... 31, 32

Kontrick v. Ryan,

540 U.S. 443 (2004) ............................................... 28

Laird v. Spencer, No. 20-30237,

2025 WL 79826 (5th Cir. Jan. 13, 2025)............... 26

Lindke v. Freed,

601 U.S. 187 (2024) .............. 4, 11, 12, 19, 20, 21, 22

Loving v. Virginia,

388 U.S. 1 (1967) ............................................. 31, 32

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) ............................................... 20

v

Mahnich v. S. S.S. Co.,

321 U.S. 96 (1944) ................................................. 29

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) ............................................... 19

Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts.

Comm’n,

584 U.S. 617 (2018) ............................................... 35

Maynard v. Hill,

125 U.S. 190 (1888) ............................................... 35

Memphis Cmty. Sch. Dist. v. Stachura,

477 U.S. 299 (1986) ............................................... 25

Meyer v. Nebraska,

262 U.S. 390 (1923) ............................................... 30

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) ............................................... 31

Miller v. Davis,

123 F. Supp. 3d 924 (E.D. Ky. 2015) ...................... 6

Miller v. Davis, No. 15-cv-44,

2015 WL 9461520 (E.D. Ky. Sept. 11, 2015) ........ 15

Miller v. Davis,

667 F. App’x 537 (6th Cir. 2016) ............................. 7

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ............................................... 23

NRA v. Vullo,

602 U.S. 175 (2024) ............................................... 21

Obergefell v. Hodges,

576 U.S. 644 (2015) .......i, 1, 4, 21, 32, 33, 34, 35, 36

vi

Paul v. Watchtower Bible & Tract Soc’y of N.Y.,

Inc.,

819 F.2d 875 (9th Cir. 1987) ................................. 26

Pavan v. Smith,

582 U.S. 563 (2017) ............................................... 33

Pearson v. Callahan,

555 U.S. 223 (2009) ......................................... 24, 29

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) ............................................... 30

Pleasant Glade Assembly of God v. Schubert,

264 S.W.3d 1 (Tex. 2008) ...................................... 26

Ramos v. Louisiana,

590 U.S. 83 (2020) ........................................... 31, 36

Sands v. Living Word Fellowship,

34 P.3d 955 (Alaska 2001) .................................... 26

Screws v. United States,

325 U.S. 91 (1945) ................................................. 22

Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535 (1942) ............................................... 31

Snyder v. Phelps,

562 U.S. 443 (2011) ......................................... 16, 23

Washington v. Glucksberg,

521 U.S. 702 (1997) ............................................... 30

Williams v. Reed,

604 U.S. 168 (2025) ............................................... 13

Wood v. Milyard,

566 U.S. 463 (2012) ......................................... 27, 28

Yee v. City of Escondido,

503 U.S. 519 (1992) ............................................... 17

vii

Yeldell v. Cooper Green Hosp., Inc.,

956 F.2d 1056 (11th Cir. 1992) ....................... 25, 26

Zablocki v. Redhail,

434 U.S. 374 (1978) ............................................... 32

Statutes

28 U.S.C. § 1738C(a) ................................................ 36

42 U.S.C. § 1983 ................................................ i, 1, 20

2016 Ky. Acts 578....................................................... 7

Ky. Rev. Stat. § 402.100 ............................................. 7

Ky. Rev. Stat. § 402.110 ............................................. 7

Respect for Marriage Act, Pub. L. No. 117-228,

136 Stat. 2305 (2022) ............................................ 36

Other Authorities

Jake Hays & Rachel Minkin, Rising Number of

U.S. Households Are Headed by Married SameSex Couples, Pew Rsch. Ctr. (June 12, 2025),

https://perma.cc/9T67-3T93 .................................. 35

1

INTRODUCTION

This is a “relatively easy” case that does not merit

this Court’s review. Ermold v. Davis, 936 F.3d 429,

441 (6th Cir. 2019) (Bush, J., concurring in part and

in the judgment). In Obergefell v. Hodges, 576 U.S.

644 (2015), the Court held that the right to marry extends to same-sex couples. Id. at 675. The Court “emphasized” the rights of private citizens to “advocate

with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” Id.

at 679. But, the Court held, “sincere, personal opposition” to same-sex marriage, even when “based on decent and honorable religious or philosophical premises,” cannot justify excluding same-sex couples from

marriage as a matter of “enacted law and public policy.” Id. at 672.

Immediately following Obergefell, petitioner Kim

Davis did exactly what the Court said was forbidden:

she made it the official policy of the Rowan County

Clerk’s office to deny marriage licenses to same-sex

couples, based on her personal objection to same-sex

marriage. Under that policy, on three separate occasions, Davis exercised the authority of the Commonwealth of Kentucky to deny respondents David Ermold and David Moore the marriage license to which

they were constitutionally entitled. Under 42 U.S.C.

§ 1983, Davis is liable in her individual capacity to respondents for damages because she engaged in state

action that violated their constitutional rights.

Davis asks the Court to consider two issues:

whether the Free Exercise Clause of the First Amend-

2

ment covers her official acts in a manner that provides an affirmative defense to liability under Section

1983, and whether the Court’s decision in Obergefell

should be overruled. Neither question merits this

Court’s review.

For several reasons, Davis’s petition “does not

cleanly present” the questions she asks the Court to

resolve. Davis v. Ermold, 141 S. Ct. 3, 4 (2020) (mem.)

(statement of Thomas, J., respecting the denial of certiorari).

To start, Davis failed to adequately develop her

First Amendment argument in the lower courts. The

first time she unambiguously raised the current version of her First Amendment affirmative defense was

in her Sixth Circuit reply brief in this final appeal,

filed nine years into the case. By waiting so long to

raise this argument, Davis deprived respondents and

the lower courts of a fair opportunity to address it. Because the issue was not fully ventilated below, the

Court should deny review.

In addition, resolving the question Davis presents

about the First Amendment in her favor would entitle

her to no relief. Even if the Court were to rule that

government officials exercising state power may assert their private constitutional rights as an affirmative defense in suits under Section 1983, Davis would

still lose this case. That is because, as Judge Readler

explained in his concurring opinion below, Davis’s

“conduct here exceeded the scope of any personal

right.” Pet. App. 32a. “Rather than attempting to invoke a religious exemption for herself, Davis instead

exercised the full authority of the Rowan County

3

Clerk’s office to enact an official policy of denying

marriage licenses to same-sex couples, one every office employee had to follow.” Id. Because Davis’s policy went beyond anything she arguably had a right to

do, her First Amendment affirmative defense would

fail even if such defenses are available to government

officials engaged in state action.

Davis’s request that Obergefell be overruled is

likewise not properly presented for this Court’s review. Beyond merely forfeiting this argument, Davis

affirmatively waived it. In the district court, Davis

“expressly stated that she did not ‘want[] to relitigate

the Supreme Court’s decision in Obergefell.’” Pet. App.

29a n.3 (alteration in original) (quoting Dist. Ct. Dkt.

29-1 at 1). She reiterated that point when she petitioned for this Court’s review in 2019, assuring the

Court that “[t]his case is not about . . . a county clerk

who wanted to re-litigate this Court’s decision in

Obergefell v. Hodges.” Pet. for Writ of Cert. at 2, Davis, 141 S. Ct. 3 (No. 19-926). The Court should hold

her to that representation. Reaching the question of

whether to overrule Obergefell in the context of this

case would also require the Court to first decide

thorny questions about how such a ruling would affect

Davis’s liability under Section 1983, given that respondents’ right to marry was clearly established at

the time of Davis’s actions.

All of those considerations counsel against using

this case as a vehicle for addressing the questions presented.

In any event, Davis’s arguments are simply wrong.

Her First Amendment theory conflicts with this

4

Court’s precedents holding that an official may be liable under Section 1983 only for actions taken on behalf of the State and that such official acts are not

protected by the First Amendment. See Lindke v.

Freed, 601 U.S. 187, 194-97 (2024). Even when the official is sued in their individual capacity for damages,

their conduct remains that of the State. Id. at 195 n.1.

The cases Davis cites recognizing a First Amendment

affirmative defense to state tort liability all concerned

the defendant’s private conduct. Nor does Davis make

a convincing case for revisiting Obergefell.

The Court should deny Davis’s petition.

STATEMENT OF THE CASE

1. In 2015, at the time of this Court’s decision in

Obergefell v. Hodges, 576 U.S. 644 (2015), petitioner

Kim Davis was the elected Clerk of Rowan County,

Kentucky. Trial Tr. 2-123 to -124. In that role, she

was responsible for issuing marriage licenses on behalf of the State. Id. Davis had been following Obergefell closely. See Dist. Ct. Dkt. 89-12 (letter from Davis addressing the pending Obergefell litigation).

When the opinion was released, she read it and understood its holding that the States could no longer

deny same-sex couples the right to marry. See Dist.

Ct. Dkt. 88-2 at 64; Trial Tr. 2-124.

Within hours of the decision, Davis also received a

letter from then-Kentucky Governor Steve Beshear

explaining that Obergefell “makes plain that the Constitution requires that Kentucky—and all states—

must license and recognize the marriages of same-sex

couples.” Dist. Ct. Dkt. 27-1. The letter instructed

5

clerks that, although “[n]either your oath nor the Supreme Court dictates what you must believe,” “as

elected officials, they do prescribe how we must act.”

Id. Davis also consulted the Rowan County attorney,

who advised her that she was legally required to issue

marriage licenses to same-sex couples “because that’s

the law.” Dist. Ct. Dkt. 88-2 at 77-78.

Davis did not follow that advice. Id. at 78. She

quickly announced that her office, as a matter of official policy, would no longer issue marriage licenses.

Dist. Ct. Dkt. 96-1 at 3. She instituted that policy

based on her personal belief that marriage must be

between one man and one woman. Id.

Respondents David Ermold and David Moore were

also following the Obergefell litigation closely, but for

different reasons. Trial Tr. 2-46. Ermold and Moore

are a same-sex couple who, at the time Obergefell was

decided, had been in a committed relationship for 17

years and had been living in Rowan County for a decade. Dist. Ct. Dkt. 1 at 2. They “already knew” they

wanted to get married if it became legal to do so in

Kentucky. Trial Tr. 2-47.

On July 6, 2015, ten days after Obergefell, respondents went to the Clerk’s office seeking a marriage license. Id. at 2-16. Davis personally denied

their application. Dist. Ct. Dkt. 88-2 at 55. Moore

pointed out that Davis had likely given marriage licenses to rapists, murderers, and pedophiles. Trial Tr.

2-17 to -18, 2-35. Davis responded by saying that giving licenses to those people “was fine because they

were straight.” Id. Ermold described that interaction

6

as something he “can never forget” for the “rest of [his]

life.” Id. at 2-50.

Shortly after that initial encounter, respondents

filed this lawsuit against Davis seeking damages

based on her violation of their constitutional right to

marry. See Dist. Ct. Dkt. 1. In a separate lawsuit filed

by different plaintiffs, the district court entered a preliminary injunction requiring Davis to issue marriage

licenses to same-sex couples in accordance with Obergefell. See Miller v. Davis, 123 F. Supp. 3d 924, 929

(E.D. Ky. 2015), vacated, 667 F. App’x 537 (6th Cir.

2016). Following entry of the preliminary injunction,

respondents tried twice more to obtain a marriage license from Davis, on August 13 and September 1.

Trial Tr. 2-20, 2-22, 2-52. But she or her deputies denied them both times, in accordance with Davis’s policy. Dist. Ct. Dkt. 96-1 at 4.

Those further denials added to respondents’ humiliation. Moore “was getting more frustrated and

more frustrated” and “couldn’t believe that [they]

were still doing this.” Trial Tr. 2-22. For Ermold, it

was a “devastating” experience: “She humiliated me

in front of my husband, she humiliated him in front

of me, and she humiliated us in front of that entire

building.” Id. at 2-49 to -51.

Soon after the third denial, the district court in

Miller held Davis in contempt for violating the preliminary injunction and remanded her to the custody

of the U.S. Marshals. See Min. Entry at 2, Miller v.

Davis, No. 15-cv-44 (E.D. Ky. Sept. 3, 2015), ECF No.

7

75. While Davis was in custody, respondents were finally able to obtain a marriage license from one of her

deputies. Dist. Ct. Dkt. 27 at 3.

2. The next year, Kentucky enacted Senate Bill

216 to resolve the controversy related to Davis’s refusal to issue marriage licenses. See 2016 Ky. Acts

578. The law removed county clerks’ names and signatures from the Commonwealth’s marriage license

forms, but it retained clerks’ central role in issuing

and recording marriage licenses. Id. at 578-79.

County clerks in Kentucky still must “make available

to the public the form . . . for the issuance of a marriage license,” Ky. Rev. Stat. § 402.100; personally

“see to it” that applicants fill in every required field,

id. § 402.110; and “deliver” the completed license to

the licensees, id.

Although Davis had previously objected to issuing

marriage licenses to same-sex couples at all, she decided following the enactment of S.B. 216 that she

was willing to issue the licenses without her name on

them. See Mot. to Dismiss at 1-2, Miller v. Davis, Nos.

15-5880 and 15-5978 (6th Cir. June 21, 2016). She

therefore moved to dismiss as moot her own appeals

of the district court’s orders in Miller granting a preliminary injunction and holding her in contempt. Id.

With the agreement of the Miller plaintiffs, the Sixth

Circuit dismissed as moot Davis’s appeals in that

case, including her objections to having been held in

contempt. Miller v. Davis, 667 F. App’x 537, 538 (6th

Cir. 2016).

3. Although the Miller litigation had been resolved, respondents’ claims for damages in this case

8

moved forward. See Ermold v. Davis, 855 F.3d 715

(6th Cir. 2017). Respondents amended their complaint, Dist. Ct. Dkt. 27, and Davis moved to dismiss,

Dist. Ct. Dkt. 29-1. In her motion to dismiss, Davis

stated that this case “is not about . . . a county clerk

who wanted to re-litigate the Supreme Court’s decision in Obergefell v. Hodges.” Id. at 1. The district

court dismissed respondents’ claim against Davis in

her official capacity based on sovereign immunity, but

the court denied the motion to dismiss with respect to

respondents’ claim against Davis in her individual capacity, rejecting her claim of qualified immunity. Ermold v. Davis, No. 15-cv-46, 2017 WL 4108921, at

*10-11 (E.D. Ky. Sept. 15, 2017).

The Sixth Circuit affirmed. Ermold v. Davis, 936

F.3d 429, 438 (6th Cir. 2019). The Court held that respondents had adequately alleged a violation of their

right to marry, which Obergefell had clearly established. Id. at 435-37. The court of appeals explained

that Obergefell “both recognized the right to same-sex

marriage and defined its contours.” Id. at 436. Obergefell was “as sweeping as it was unequivocal” and

“made no mention of a limit on that right, of an exception to it, or of a multi-factor test for determining

when an official violates it.” Id. “For a reasonable official, Obergefell left no uncertainty.” Id. Judge Bush

concurred. Although he would have applied a different standard to evaluate restrictions on the right to

marry, he concluded that Davis’s categorical refusal

to issue marriage licenses to same-sex couples based

on her personal religious views would violate the Constitution under even rational-basis review. Id. at 441-

9

42 (Bush, J., concurring in part and in the judgment).

“Davis knew or ought to have known, to a legal certainty, that she could not refuse to issue marriage licenses, as was her duty under state law, because of

moral disapproval of homosexuality.” Id. at 442.

The Sixth Circuit rejected Davis’s argument that

she was entitled to qualified immunity based on her

religious beliefs. Id. at 437 (majority opinion). The

panel majority noted that Obergefell “said nothing to

suggest that government officials may flout the Constitution by enacting religious-based policies to accommodate their own religious beliefs.” Id. Given “the

absence of any legal authority to support her novel”

arguments, Davis “should have known that Obergefell

required her to issue marriage licenses to same-sex

couples—even if she sought and eventually received

an accommodation.” Id. Judge Bush agreed. His concurrence explained that Davis was not “entitled to

self-create an accommodation” when “none was forthcoming from the state government.” Id. at 442 (Bush,

J., concurring in part and in the judgment). If Davis

“truly believed” she was entitled to an accommodation, “she should have sought and obtained judicial

confirmation of her claim.” Id.

Davis’s petitions for rehearing en banc and for certiorari were both denied. See Davis v. Ermold, 141 S.

Ct. 3 (2020) (mem.). In her petition for certiorari, Davis again emphasized that “[t]his case is not about . . .

a county clerk who wanted to re-litigate this Court’s

decision in Obergefell v. Hodges.” Pet. for Writ of Cert.

at 2, Davis, 141 S. Ct. 3 (No. 19-926). In a statement

respecting the denial of certiorari, Justice Thomas

10

noted that Davis’s petition “d[id] not cleanly present”

any “questions about the scope of [the Court’s] decision in Obergefell.” Davis, 141 S. Ct. at 4 (statement

of Thomas, J., respecting the denial of certiorari).

On remand, the parties filed cross-motions for

summary judgment. See Dist. Ct. Dkt. 88, 93. The district court granted summary judgment to respondents, rejecting Davis’s “recycled” qualified-immunity

arguments. Ermold v. Davis, No. 15-cv-46, 2022 WL

830606, at *3 (E.D. Ky. Mar. 18, 2022). The district

court explained that “Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as

an elected official.” Id. at *7. Although Davis’s “conscientious religious objection to same-sex marriage

outside of her official duties is not actionable,” she “is

liable for her actions within the scope of her work as

county clerk”—those actions taken under color of

state law. Id. Indeed, the district court could “find no

example, nor ha[d] Davis provided one, where a defendant’s constitutional rights were found to be a

valid defense for violating the constitutional rights of

others.” Id.

Davis filed another interlocutory appeal, and the

Sixth Circuit again ruled against her, affirming the

district court’s denial of qualified immunity. Ermold

v. Davis, No. 22-5260, 2022 WL 4546726, at *3 (6th

Cir. Sept. 29, 2022). As the Court explained, respondents “ha[d] not only ‘alleged’ but also now ‘shown’ that

Davis violated their constitutional right to marry.” Id.

at *2.

11

4. The district court then held a trial focused solely

on damages. Dist. Ct. Dkt. 148, 149, 151. Both respondents testified about the profound emotional distress that they suffered because of Davis’s repeated

denial of their right to marry. Moore testified that “it’s

distorted [their] whole life forever,” Trial Tr. 2-29,

while Ermold testified that “[he] can never forget it

for the rest of [his] life,” id. at 2-50. Davis’s actions

caused tension in their marriage, id. at 2-23, 2-53; ruined their memories from their wedding, id. at 2-24,

2-26, 2-48; and triggered Ermold’s PTSD on “a daily

basis almost,” id. at 2-86.

Based on that and other evidence, the jury

awarded $50,000 in compensatory damages to each

respondent. Dist. Ct. Dkt. 152. The district court entered final judgment for respondents. Dist. Ct. Dkt.

166.

5. Davis appealed the final judgment, and the

Sixth Circuit ruled against her again, affirming the

district court’s finding of liability at summary judgment and the jury’s award of damages at trial. Pet.

App. 1a-34a.

As relevant to Davis’s petition for certiorari, the

Sixth Circuit concluded that her asserted First

Amendment affirmative defense “fail[s] under basic

constitutional principles.” Pet. App. 14a. The court explained that “[t]he First Amendment protects ‘private

conduct,’ not ‘state action.’” Id. (quoting Lindke v.

Freed, 601 U.S. 187, 196-97 (2024)). In this case, “Davis is being held liable for state action, which the First

Amendment does not protect—so the Free Exercise

12

Clause cannot shield her from liability.” Id. In her private life, Davis has her own constitutional rights. Id.

But “when Davis denied [respondents] a marriage license, she was wielding the ‘authority of the State’—

not ‘function[ing] as a private citizen.’” Pet. App. 16a

(quoting Lindke, 601 U.S. at 197). That meant her “license denials were ‘state action,’ which cannot receive

First Amendment protection.” Id. (citation omitted).

It was thus little surprise that Davis “ha[d] not found

a case in which a government official has raised a successful First Amendment defense to a § 1983 claim.”

Pet. App. 17a. Her theory was “not how the Constitution works.” Pet. App. 19a.

Judge Readler concurred in part and in the judgment. Pet. App. 29a. He agreed with the majority that

Davis’s free exercise defense failed, but for different

reasons. Judge Readler concluded there was no need

to address whether the Free Exercise Clause could

ever provide government officials a defense to liability

under Section 1983 because, even if such a defense

might sometimes be available, Davis’s “conduct here

exceeded the scope of any personal right.” Pet. App.

32a. Davis “‘t[ook] the law into her own hands’” in “the

most extreme way.” Id. (quoting Ermold, 936 F.3d at

442 (Bush, J., concurring in part and in the judgment)). “Rather than attempting to invoke a religious

exemption for herself, Davis instead exercised the full

authority of the Rowan County Clerk’s office to enact

an official policy of denying marriage licenses to

same-sex couples, one every office employee had to follow.” Id. And “a government employee, acting in the

scope of that employment, does not have a unilateral

13

free exercise right to use an arm of the state to infringe on a clearly established equal protection right

of the public.” Pet. App. 32a-33a.

The Sixth Circuit also rejected Davis’s defense under the Kentucky Religious Freedom Restoration Act.

The panel majority determined that Kentucky’s

RFRA applies only when the State is a party to the

lawsuit, and thus had no role to play in this case. Pet.

App. 19a-21a. In his concurrence, Judge Readler

again “t[ook] a different route to [the same] conclusion.” Pet. App. 34a. He determined that Kentucky’s

RFRA, as “a state law,” “cannot immunize officials

from a § 1983 claim, which serves to vindicate federal

rights.” Id. (citing Williams v. Reed, 604 U.S. 168, 174

(2025)).

The Sixth Circuit rejected Davis’s petition for rehearing en banc. Pet. App. 37a. No judge requested a

vote on the petition. Id.

REASONS FOR DENYING THE PETITION

I.

Davis’s First Amendment Defense Does

Not Merit Review.

Davis’s First Amendment argument, which she

presents as two separate questions in her petition,

boils down to a single issue: whether government officials may assert their private First Amendment

rights as a defense to liability for their official actions

taken on behalf of the State. This case is not a good

vehicle for resolving that question because Davis

failed to adequately develop her argument in the

lower courts and because she would be entitled to no

relief on her First Amendment defense even if she is

14

permitted to raise it. In any event, Davis’s argument

is simply wrong. The First Amendment does not protect officials engaged in state action.

A.

The Petition Is a Poor Vehicle for

Addressing Davis’s First Amendment Argument.

The petition does not cleanly present Davis’s First

Amendment question, both because she failed to adequately present the question below and because her

First Amendment defense would fail even if the Court

resolved the question in her favor.

1. Although Davis has asserted her religious opposition to same-sex marriage throughout this case, she

has repeatedly changed her theory for why her beliefs

are legally relevant to respondents’ damages claims.

Davis first argued that she had not violated respondents’ right to marry because, under rational-basis review, the State’s interest in denying marriage licenses as a means of accommodating her religious beliefs outweighed respondents’ constitutional interest

in obtaining a license. See, e.g., Br. of Appellant at 1920, Ermold v. Davis, 936 F.3d 429 (6th Cir. 2019) (No.

17-6119). In other words, she contended that her religious beliefs provided an exception to the Fourteenth

Amendment, not an affirmative defense to tort liability under the First Amendment. That argument failed

below, see Ermold v. Davis, 936 F.3d 429, 436-37 (6th

Cir. 2019), and Davis does not ask this Court to review it.

15

Davis also invoked her own free exercise rights,

but she did so as part of a convoluted employment accommodation claim. And she consistently failed to explain what that accommodation claim had to do with

her liability under Section 1983. Traditionally, accommodation claims are filed by an employee against

their employer, not used as a defense to liability in

lawsuits filed by third parties. See, e.g., Groff v.

DeJoy, 600 U.S. 447, 453 (2023) (noting that “Title VII

of the Civil Rights Act of 1964 requires employers to

accommodate the religious practice of their employees” in certain situations); id. at 467 n.14 (discussing

“employment-related” accommodation claims raised

under the Religious Freedom Restoration Act); Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 524-25

(2022) (discussing the scope of accommodation claims

under the Free Exercise Clause in suit filed by an employee against his government employer).

Davis’s accommodation argument initially arose

in the related Miller litigation, where it took the typical form of an employee suing her employer. In Miller, Davis filed a third-party complaint against thenGovernor Beshear, alleging that he had violated her

religious rights by failing to provide an adequate accommodation. See Dist. Ct. Dkt. 89-10. But Davis’s accommodation claim went nowhere in that case. See

Miller v. Davis, No. 15-cv-44, 2015 WL 9461520, at *23 (E.D. Ky. Sept. 11, 2015) (holding that the accommodation claim belonged in state court).

At that point, Davis started copying her accommodation arguments from Miller into her briefing in this

16

case. But she never explained how her claim to an accommodation—originally asserted against Governor

Beshear—provides a defense to respondents’ damages

claim. In her opening Sixth Circuit brief in the present appeal, Davis included among the issues presented whether she “was entitled to a reasonable accommodation of her religious beliefs.” Br. of Appellant

at 2, Ermold v. Davis, 130 F.4th 553 (6th Cir. 2025)

(No. 24-5524). She did not, however, list a First

Amendment affirmative defense among the issues to

be decided, and the brief never connected her accommodation arguments to respondents’ damages claims.

Respondents answered by pointing out that they have

no authority to give Davis an accommodation and that

her accommodation claim was moot. It was only then,

in her Sixth Circuit reply brief—filed nine years into

the case—that Davis articulated her current theory of

a First Amendment affirmative defense to liability

under Section 1983, modeled on the First Amendment

defense to tort liability recognized in Snyder v.

Phelps, 562 U.S. 443 (2011). See Reply Br. at 14-16,

Ermold, 130 F.4th 553 (No. 24-5524).

By failing to articulate this theory earlier, Davis

deprived respondents and the lower courts of a fair

opportunity to fully address it. “In the ordinary

course, ‘[p]rudence . . . dictates awaiting a case in

which the issue was fully litigated below, so that [the

Court] will have the benefit of developed arguments

on both sides and lower court opinions squarely addressing the question.’” Food & Drug Admin. v. R. J.

Reynolds Vapor Co., 145 S. Ct. 1984, 1996 (2025)

17

(quoting Yee v. City of Escondido, 503 U.S. 519, 538

(1992)).

2. This case is also a poor vehicle for deciding

whether government officials may invoke the First

Amendment in defense of their official acts because

even if they could, Davis’s First Amendment defense

would fail on the facts here.

The Sixth Circuit correctly held that Davis cannot

claim constitutional protection for her official acts at

all. See Pet. App. 13a-21a. But even if that were

wrong—even if the First Amendment protected state

actors wielding state power in some circumstances—

Davis would still be liable. Davis’s violation of respondents’ constitutional rights went far beyond anything that she could possibly claim a First Amendment right to do.

As Judge Readler explained in his concurring

opinion below, “[t]o the extent that the First Amendment offered Davis some shield from liability, her conduct here exceeded the scope of any personal right.”

Pet. App. 32a. “Rather than attempting to invoke a

religious exemption for herself, Davis instead exercised the full authority of the Rowan County Clerk’s

office to enact an official policy of denying marriage

licenses to same-sex couples, one every office employee had to follow.” Id. At least one of Davis’s deputies had no religious objection to issuing marriage licenses to same-sex couples. Dist. Ct. Dkt. 27 at 3. Davis could have permitted him to issue the licenses

while removing her name from the form, which is how

respondents ultimately obtained their license. Dist.

Ct. Dkt. 27-2. But instead of merely recusing herself,

18

Davis imposed her religious views on the entire office.

See Ermold v. Davis, No. 15-cv-46, 2022 WL 830606,

at *4 (E.D. Ky. Mar. 18, 2022). As Judge Readler put

it, “a government employee, acting in the scope of that

employment, does not have a unilateral free exercise

right to use an arm of the state to infringe on a clearly

established equal protection right of the public.” Pet.

App. 32a-33a.

Nor did Davis follow the proper procedures for vindicating her religious rights. “If Davis truly believed

that she had a right under [Kentucky’s Religious

Freedom Restoration Act] to not issue marriage licenses, she should have sought and obtained judicial

confirmation of her claim.” Ermold, 936 F.3d at 442

(Bush, J., concurring in part and in the judgment).

But she never did. Davis’s argument is thus not just

that “she was entitled to an accommodation,” but rather that “she was entitled to self-create an accommodation” of her own chosen scope. Id. “[I]t was not permissible for Davis to take the law into her own

hands.” Id.

In short, Davis’s actions went “too far” on any possible understanding of the religious rights of government officials. Id. Based on that “unique set of facts,”

“the First Amendment does not shield Davis from liability.” Pet. App. 32a (Readler, J., concurring in part

and in the judgment).

19

B.

Davis’s First Amendment Argument

Conflicts with This Court’s Precedent.

The petition is also unworthy of review because

the Sixth Circuit’s decision is correct under this

Court’s precedent and does not conflict with any other

authority.

1. The Sixth Circuit correctly concluded that “[t]he

First Amendment protects ‘private conduct,’ not ‘state

action.’” Pet. App. 14a (quoting Lindke v. Freed, 601

U.S. 187, 196-97 (2024)); see also, e.g., Manhattan

Cmty. Access Corp. v. Halleck, 587 U.S. 802, 804

(2019) (“[T]he First Amendment constrains governmental actors and protects private actors.”). As this

Court has held, “when public employees make statements pursuant to their official duties, the employees

are not speaking as citizens for First Amendment purposes.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

When Davis denied respondents a marriage license,

she was exercising her official authority on behalf of

the Commonwealth of Kentucky. The First Amendment does not protect that state action. She therefore

cannot invoke the Free Exercise Clause as a shield to

liability under Section 1983 for violating respondents’

rights while acting as the State.

Davis contends that she should not be treated as a

government official for purposes of respondents’ damages claim because “government officials are stripped

of their governmental nature in an individual-capacity claim.” Pet. 19. That is incorrect. “Section 1983

provides a cause of action against ‘[e]very person who,

20

under color of any statute, ordinance, regulation, custom, or usage, of any State’ deprives someone of a federal constitutional or statutory right.” Lindke, 601

U.S. at 194 (alteration in original) (quoting 42 U.S.C.

§ 1983). “As its text makes clear, this provision protects against acts attributable to a State, not those of

a private person.” Id. An official sued under Section

1983 based on their official acts is thus by definition

treated as a government actor, not a private citizen,

regardless of the capacity in which they are sued. See

id. at 195 n.1.

Lindke is instructive. Like this case, Lindke involved a suit against a government official in his individual capacity seeking damages under Section 1983.

Id. In that context, the Court considered the interplay

between the First Amendment right of a private individual not to have his speech censored by government

officials on social media and the government official’s

own First Amendment right to speak on matters of

public concern in his private capacity. Id. at 196-97.

Like the lower courts in this case, the Court held that

the line between those rights depends on the stateaction doctrine. Id. When a government official acts

in his “private capacity,” he may “exercise[] his own”

constitutional rights. Id. at 197. But when the official

takes actions that are “fairly attributable to the State,”

it is the public that has constitutional rights against

the official. Id. at 198 (quoting Lugar v. Edmondson

Oil Co., 457 U.S. 922, 937 (1982)).

A government official may therefore be liable for

censoring speech on social media if the official “possessed actual authority to speak on the State’s behalf”

21

and “purported to exercise that authority.” Id. In

other words, it is the capacity in which the official

acted, not the capacity in which he is sued, that matters for determining whether an official can assert his

own private constitutional rights as a defense. See,

e.g., NRA v. Vullo, 602 U.S. 175, 198 (2024) (holding

that a former public official sued in her individual capacity for damages was liable for “coercive threats,”

notwithstanding her own free speech rights). Here,

Davis is liable because she had official authority to issue marriage licenses on behalf of the State, and she

purported to exercise that authority to deny respondents the license to which they were constitutionally

entitled.

Obergefell likewise turned on the distinction between private rights and government action. The

First Amendment “ensures that religious organizations and persons are given proper protection as they

seek to teach the principles that are so fulfilling and

so central to their lives and faiths.” Obergefell v.

Hodges, 576 U.S. 644, 679-80 (2015). At the same

time, however, the Fourteenth Amendment “does not

permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the

opposite sex.” Id. at 680. Accordingly, as the Sixth Circuit concluded, the First Amendment allowed Davis

to advocate against same-sex marriage as a private

citizen, but her “opposition to same-sex marriage

[could] not constitutionally bear ‘the imprimatur of

the State itself.’” Pet. App. 18a (quoting Obergefell,

576 U.S. at 672).

22

2. Davis does not identify a single case recognizing

a First Amendment affirmative defense to liability

under Section 1983, and the cases she does cite provide no support for her position. Her argument rests

instead on conflating the different ways this Court

has used the words “private” and “personal” in cases

arising under Section 1983.

The Court has explained that government officials

“are also private citizens with their own constitutional rights,” and when they engage in “‘personal

pursuits’” in their “private capacity,” they do not satisfy Section 1983’s state-action requirement and may

not be held liable. Lindke, 601 U.S. at 196-97 (quoting

Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion)). That principle does not apply here because Davis acted in her official capacity when she denied respondents a marriage license.

The Court has also used the word “personal” in a

different sense, to describe both the type of liability

and the type of immunities that apply when an official

is sued in her individual capacity for damages based

on official acts. E.g., Hafer v. Melo, 502 U.S. 21, 28

(1991). The use of “personal” in that context distinguishes individual-capacity suits from official-capacity suits, the latter of which are in essence suits

against the State itself and thus implicate state sovereign immunity. But despite the “personal” label, individual-capacity suits are nonetheless premised on

state action, not on private conduct. The First Amendment therefore does not provide a defense to liability.

23

Illustrating Davis’s confusion on this point, she

cites Hafer for the proposition that a government official sued in a “personal or individual capacity” may

assert “personal immunity and personal defenses to

liability.” Pet. 22. But Hafer holds only that government officials can be sued in their individual capacities for damages under Section 1983. Hafer, 502 U.S.

at 25. It says nothing about whether officials can assert First Amendment defenses in such actions. And

although Hafer referred to “personal liability,” and

“personal immunity defenses such as” qualified immunity, the Court made clear that such “personal” liability attaches to government officials’ “acts within

their authority and necessary to fulfilling governmental responsibilities.” Id. at 25, 28. Even when sued in

an individual capacity, the official is held liable for

state action. As a result, the official’s private constitutional rights are beside the point.

Davis also invokes Snyder v. Phelps, 562 U.S. 443

(2011), and New York Times Co. v. Sullivan, 376 U.S.

254 (1964). See Pet. 20, 25, 31. But those cases involved state-law tort suits based on private conduct.

In that context, the Court held that a private defendant can assert his free speech rights as a defense to

the imposition of liability. Snyder, 562 U.S. at 458-59;

Sullivan, 376 U.S. at 283-84. Neither decision suggests that the same First Amendment analysis would

apply to a suit under Section 1983 seeking to hold a

government official liable for actions taken under

color of state law.

Davis claims that if government officials cannot

assert their private constitutional rights to shield

24

their official acts, they will be rendered defenseless

when sued for damages in their individual capacities.

See Pet. 22-23. It is black letter law, however, that officials sued in their individual capacities can assert

certain immunity defenses. See Hafer, 502 U.S. at 25;

see also, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976)

(absolute prosecutorial immunity); Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity). Davis

herself is well acquainted with the ability of officials

sued in their individual capacities to claim qualified

immunity, having done so herself throughout this

case. The only sense in which Davis has been

“stripped of any government immunity,” Pet. 4, is that

the lower courts rejected her qualified-immunity arguments.

It is instead Davis’s position that would lead to inequitable results. The Sixth Circuit noted the “dire

possibilities that might follow if Davis’s argument

were accepted.” Pet. App. 19a. On her theory of constitutional defenses, “[a]n election official who believes women should not vote could refuse to count

ballots cast by females,” or “[a] zoning official personally opposed to Christianity could refuse to permit the

construction of a church.” Id. Such officials could then

assert their private constitutional rights as a defense

in any ensuing lawsuit challenging their official, unconstitutional acts. As the Sixth Circuit explained:

“That is not how the Constitution works.” Id.

Finally, Davis seeks to bolster her First Amendment arguments with unrelated objections to the district court’s order holding her in contempt in Miller

and the jury’s award of emotional-distress damages in

25

this case. See Pet. i-ii, 3, 8-9, 13-14, 22-23, 27, 30. But

both issues are red herrings. Davis cannot use her petition for certiorari in this case to ask the Court to review a contempt ruling from a completely different

case. And it is well established that “mental and emotional distress constitute compensable injury in

§ 1983 cases.” Memphis Cmty. Sch. Dist. v. Stachura,

477 U.S. 299, 307 (1986) (citing Carey v. Piphus, 435

U.S. 247, 264 (1978)). There is thus nothing suspect

about the jury’s damages award.

3. Davis’s purported circuit splits are illusory. She

first cites cases recognizing that government officials

sued in their individual capacities for damages can

claim certain immunity defenses: absolute immunity

for judges and prosecutors, legislative immunity for

lawmakers, or qualified immunity for other officials.

See Pet. 20-21. None of those cases involved a First

Amendment defense to liability under Section 1983.

Accordingly, they neither support Davis’s First

Amendment argument nor conflict with the decision

below.

In Conner v. Reinhard, 847 F.2d 384 (7th Cir.

1988), for instance, the Seventh Circuit reversed a

district court decision granting qualified immunity to

government officials. See id. at 393. And in Yeldell v.

Cooper Green Hospital, Inc., 956 F.2d 1056 (11th Cir.

1992), the Eleventh Circuit granted legislative immunity to certain government officials while denying

legislative and qualified immunity to another government official. See id. at 1062-65. Davis’s discussion of

Yeldell omits the word “immunity” from the phrase

“personal immunity defenses.” Compare Pet. 20 with

26

Yeldell, 956 F.2d at 1060. But in neither Conner nor

Yeldell did a government official assert affirmative

defenses based on his own constitutional rights.

The Fifth Circuit’s unpublished decision in Laird

v. Spencer, No. 20-30237, 2025 WL 79826 (5th Cir.

Jan. 13, 2025), is even further afield. That case concerned a justice of the peace who asserted absolute judicial immunity as a defense to an official-capacity

suit under the Americans with Disabilities Act. Id. at

*2-6. Laird thus involved neither a claim under Section 1983, nor an official sued in his individual capacity, nor an affirmative defense based on the official’s

constitutional rights. It has no relevance to this case.

Davis also cites cases holding that private citizens

and religious organizations sued for their private conduct may raise First Amendment defenses to state

tort liability. Pet. 28-30. None of those cases involved

a claim under Section 1983, a government-official defendant, or any actions taken under color of state law.

See, e.g., Paul v. Watchtower Bible & Tract Soc’y of

N.Y., Inc., 819 F.2d 875, 879-83 (9th Cir. 1987) (suit

against the governing body of the Jehovah’s Witnesses for state-law torts); Sands v. Living Word Fellowship, 34 P.3d 955, 958-62 (Alaska 2001) (suit

against a church and two of its members for state-law

torts); Pleasant Glade Assembly of God v. Schubert,

264 S.W.3d 1, 2 (Tex. 2008) (suit against a church and

several of its members for state-law torts).

Those cases are consistent with the decision below.

The Sixth Circuit held only that First Amendment affirmative defenses are unavailable to government officials sued under Section 1983 based on actions taken

27

under color of state law. That does nothing to undermine the ability of private defendants—or even government officials sued based on their private conduct—to raise the First Amendment as an affirmative

defense to tort claims.

II.

The Court Should Decline Davis’s Invitation to Reconsider Obergefell.

A.

This Case Is a Poor Vehicle for Revisiting Obergefell.

Davis also asks the Court to grant review to overrule Obergefell. But her petition “does not cleanly present” that question, either. Davis v. Ermold, 141 S.

Ct. 3, 4 (2020) (mem.) (statement of Thomas, J., respecting the denial of certiorari). Throughout the

case, Davis has affirmatively waived any intention to

seek reconsideration of Obergefell. And reaching that

question in the context of this case would first require

the Court to address thorny questions about the nature of liability under Section 1983, given that Obergefell had clearly established respondents’ right to

marry at the time of Davis’s conduct.

1. As an initial matter, Davis has waived any request to overrule Obergefell. As the Sixth Circuit observed, Davis’s motion to dismiss “expressly stated

that she did not ‘want[] to relitigate the Supreme

Court’s decision in Obergefell.’” Pet. App. 29a n.3 (alteration in original) (quoting Dkt. 29-1 at 1). That express waiver, made “in no uncertain terms,” constitutes the “intentional relinquishment or abandonment of a known right.” Wood v. Milyard, 566 U.S.

463, 474 (2012) (quoting Kontrick v. Ryan, 540 U.S.

28

443, 458 n.13 (2004)). Federal courts lack “authority

to resurrect” a defense that has been waived in that

manner. Id. at 471 n.5.

Likewise, when Davis sought this Court’s review

in 2019, her petition opened with the following:

This case is not about whom a person

may marry under Kentucky law,

whether Kentucky must license the marriage of a same-sex couple, or even

whether Respondents could obtain a

Kentucky marriage license when they

wanted one. Nor is this case about a

county clerk who wanted to re-litigate

this Court’s decision in Obergefell v.

Hodges, or to prevent Respondents or

any other same-sex couple from receiving a marriage license in Kentucky.

Pet. for Writ of Cert. at 2, Davis, 141 S. Ct. 3 (No. 19926).

Nothing prevented Davis from asking this Court

to overrule Obergefell the last time she petitioned for

review, or from at least preserving the issue in the

district court for later consideration by this Court. Instead, she explicitly stated that she was not challenging Obergefell. She should be held to that waiver.

2. This case would be a poor vehicle for overruling

Obergefell even if the issue had been preserved. To

overturn Obergefell in this case, the Court would first

have to determine whether such a decision would allow Davis to escape liability under Section 1983. Oth-

29

erwise, the Court’s decision “would amount to an advisory opinion without the possibility of any judicial

relief” for Davis. California v. Texas, 593 U.S. 659,

673 (2021) (internal quotation marks omitted).

But it is not at all clear that a public official who

has acted contrary to this Court’s decisions can avoid

Section 1983 liability by asking the Court to overrule

the very precedent she defied. Liability under Section

1983 generally depends on the law “at the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at

232 (emphasis added). Before the Court could even

begin to consider overruling Obergefell in the context

of this case, the Court would first have to resolve

novel and difficult questions about what law, as established at what time, matters for purposes of liability under Section 1983.

And resolving that issue in Davis’s favor could lead

to unsettling consequences. If government officials

can intentionally violate clearly established law, and

then later be exonerated for doing so based on the reversal of precedent, “the law becomes not a chart to

govern conduct but a game of chance,” Mahnich v. S.

S.S. Co., 321 U.S. 96, 112 (1944) (Roberts, J., dissenting). It would incentivize other officials to violate constitutional rights they dislike, in the hope that this

Court will someday bail them out by overruling the

precedent they disregarded. “Respect for tribunals

[will] fall when the bar and the public come to understand that nothing that has been said in prior adjudication has force in a current controversy.” Id. at 113.

30

B.

Obergefell Should Not Be Overruled.

Obergefell was correctly decided, and there is no

need to revisit it. Davis’s primary argument for doing

so—that the Due Process Clause does not protect any

substantive rights—is at odds with more than a century of this Court’s precedent and ignores the equal

protection aspect of Obergefell’s rationale.

1. Davis argues that this case “presents the ideal

opportunity to revisit substantive due process.” Pet.

34. But the Due Process Clause’s protection of some

substantive rights has been settled for more than a

century. And in any event, Obergefell rested on both

due process and equal protection rationales, but Davis says nothing about equal protection.

As this Court reiterated just last year, the Due

Process Clause “promises more than fair process: It

also ‘provides heightened protection against government interference with certain fundamental rights

and liberty interests.’” Dep’t of State v. Muñoz, 602

U.S. 899, 909-10 (2024) (quoting Washington v.

Glucksberg, 521 U.S. 702, 720 (1997)); see also Dobbs

v. Jackson Women’s Health Org., 597 U.S. 215, 237

(2022) (recognizing that the Due Process Clause protects a “select list of fundamental rights that are not

mentioned anywhere in the Constitution”). Included

among those rights are the right to make decisions

about the education of one’s children, see Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925); the right not to be sterilized without consent, see Skinner v. Oklahoma ex rel. William-

31

son, 316 U.S. 535 (1942); and the right to marry irrespective of race, see Loving v. Virginia, 388 U.S. 1

(1967). Davis provides no persuasive reason for this

Court to discard the doctrine underpinning some of

our Nation’s most cherished rights.

2. In the alternative, Davis argues that even if the

Court is not prepared to overrule all of substantive

due process, the Court should still revisit Obergefell

based on the specific reasoning of that case. Pet. 36.

But Obergefell was correctly decided and should not

be overruled.

“[T]o overrule an important precedent is serious

business.” Ramos v. Louisiana, 590 U.S. 83, 120

(2020) (Kavanaugh, J., concurring in part) (internal

quotation marks omitted). Stare decisis is “a foundation stone of the rule of law.” Kimble v. Marvel Ent.

LLC, 576 U.S. 446, 455 (2015) (quoting Michigan v.

Bay Mills Indian Cmty., 572 U.S. 782, 798 (2014)). It

“serves many valuable ends.” Dobbs, 597 U.S. at 263.

Stare decisis protects the interests of those who have

relied on precedent; “reduces incentives for challenging settled precedents”; “fosters evenhanded decisionmaking by requiring that like cases be decided in a

like manner”; and “contributes to the actual and perceived integrity of the judicial process.” Id. at 263-64

(internal quotation marks omitted). Accordingly, the

Court has repeatedly stated that “an argument that

[it] got something wrong—even a good argument to

that effect—cannot by itself justify scrapping settled

precedent.” Kimble, 576 U.S. at 455. Rather, “[t]o re-

32

verse course,” this Court requires a “‘special justification.’” Id. at 455-56 (quoting Halliburton Co. v. Erica

P. John Fund, Inc., 573 U.S. 258, 266 (2014)).

Davis’s petition cannot get out of the starting

blocks in its attack on precedent: Obergefell correctly

held that the Due Process and Equal Protection

Clauses extend the right to marry to same-sex couples. Obergefell’s holding falls comfortably within this

Court’s precedents, which have “long held the right to

marry is protected by the Constitution.” Obergefell,

576 U.S. at 664. As Obergefell observed, “[o]ver time

and in other contexts, the Court has reiterated that

the right to marry is fundamental under the Due Process Clause.” Id. That right is “based in history, tradition, and other constitutional liberties inherent in

this intimate bond.” Id. at 665. Indeed, “the annals of

human history reveal the transcendent importance of

marriage.” Id. at 656.

Obergefell was also grounded in the Fourteenth

Amendment’s “guarantee of the equal protection of

the laws.” Id. at 672. The Court’s precedents recognize

that, at least with respect to marriage, the rights protected by the Due Process and Equal Protection

Clauses are “connected.” Id. For example, in Loving,

this Court invalidated a ban on interracial marriage

both because “restricting the freedom to marry solely

because of racial classifications violates the central

meaning of the Equal Protection Clause” and because

the marriage ban denied a “fundamental freedom”

protected by the Due Process Clause. Id. at 672-73

(quoting Loving, 388 U.S. at 12). And in Zablocki v.

Redhail, 434 U.S. 374 (1978), this Court invalidated a

33

law barring fathers who were behind on child-support

payments from marrying without judicial approval

because the “essential nature of the marriage right . . .

made apparent the law’s incompatibility with requirements of equality.” Obergefell, 576 U.S. at 673.

By the same token, laws prohibiting same-sex marriage “are in essence unequal: same-sex couples are

denied all the benefits afforded to opposite sex-couples and are barred from exercising a fundamental

right.” Id. at 675; see also Pavan v. Smith, 582 U.S.

563, 566 (2017) (per curiam) (reiterating that “a State

may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as oppositesex couples’” (quoting Obergefell, 576 U.S. at 675-76)).

Davis contends that Obergefell’s reasoning failed

to “satisfy Glucksberg’s primary requirement of carefully describing the right at issue.” Pet. 36. But this

Court “has long held the right to marry is protected

by the Constitution,” Obergefell, 576 U.S. at 664, and

the Court has “inquired about” that right “in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the

right,” id. at 671. For example, “Loving did not ask

about a ‘right to interracial marriage’; Turner [v.

Safley, 482 U.S. 78 (1987)] did not ask about a ‘right

of inmates to marry’; and Zablocki did not ask about

a ‘right of fathers with unpaid child support duties to

marry.’” Id. In any event, the right recognized in

Obergefell was grounded in not only the Due Process

Clause but also the Equal Protection Clause. See id.

at 672-75. Davis provides no reason why this Court

34

should revisit its conclusion that denying the fundamental right of marriage to same-sex couples

“abridge[s] central precepts of equality.” Id. at 675.

At a minimum, Davis cannot show that the “nature of [the Court’s] error” or the “quality of [its] reasoning” in Obergefell warrant revisiting the decision.

Dobbs, 597 U.S. at 268. Obergefell’s constitutional

analysis was not “far outside the bounds of any reasonable interpretation of the various constitutional

provisions” on which it relied. Id.; cf. id. at 295 (stating that “[n]othing” in Dobbs “should be understood to

cast doubt on” Obergefell). On the contrary, Obergefell

was entirely consistent with this Court’s cases, which

have long recognized that the “right to marry is fundamental as a matter of history and tradition.” Obergefell, 576 U.S. at 671.

Regardless, Davis provides no “special justification” for revisiting Obergefell. Halliburton, 573 U.S.

at 266. None of the other factors that this Court has

identified when deciding whether to overturn its precedents supports doing so here. See Dobbs, 597 U.S. at

268 (listing factors). With respect to workability, Davis makes no effort to contest that Obergefell can “be

understood and applied in a consistent and predictable manner.” Id. at 280-81. In fact, the right recognized in Obergefell has proven remarkably workable.

A decade since Obergefell, there are now nearly

800,000 married same-sex couples living across the

United States. See Jake Hays & Rachel Minkin, Rising Number of U.S. Households Are Headed by Married Same-Sex Couples, Pew Rsch. Ctr. (June 12,

35

2025), https://perma.cc/9T67-3T93. Those families

were built around the right this Court recognized.

Nor has Obergefell “distort[ed] . . . important but

unrelated legal doctrines.” Dobbs, 597 U.S. at 286.

Contrary to Davis’s suggestion, see Pet. 35, Obergefell

did not privilege the right to marry over religious liberty. Obergefell itself “emphasized that religions, and

those who adhere to religious doctrines, may continue

to advocate . . . that, by divine precepts, same-sex

marriage should not be condoned,” and that the First

Amendment affords individuals and religious organizations “proper protection as they seek to teach the

principles that are so fulfilling and so central to their

lives and faiths.” 576 U.S. at 679-80. And since Obergefell, the Court has provided robust protection to individuals’ free speech and free exercise rights in cases

involving same-sex relationships, allowing those

rights to workably coexist. See, e.g., 303 Creative LLC

v. Elenis, 600 U.S. 570 (2023); Fulton v. City of Philadelphia, 593 U.S. 522 (2021); Masterpiece Cakeshop,

Ltd. v. Colo. Civ. Rts. Comm’n, 584 U.S. 617 (2018).

Overruling Obergefell would also “upend substantial reliance interests.” Dobbs, 597 U.S. at 287. Marriage is “the foundation of the family and of society.”

Obergefell, 576 U.S. at 669 (quoting Maynard v. Hill,

125 U.S. 190, 211 (1888)). It also provides protection.

Marriage secures “recognition, stability, and predictability” for families, their children, and society. Id. at

668. States, the federal government, and private actors direct legal entitlements to married couples and

their families, including Social Security benefits,

health insurance, rights related to child custody and

36

adoption, and various property rights. Id. at 667-70.

Stare decisis has “added force” where, as here, “citizens, in the private realm, have acted in reliance on a

previous decision.” Hilton v. S.C. Pub. Rys. Comm’n,

502 U.S. 197, 202 (1991); see also Ramos, 590 U.S. at

107 (listing the decision to “enter[] a marriage” among

the forms of reliance that would support “preserv[ing]

precedent”). Overruling Obergefell could call into

question the constitutional status of existing samesex marriages and disrupt the lives of those who aspire to, plan their affairs around, and benefit from

same-sex marriage.

Davis argues that the Respect for Marriage Act,

Pub. L. No. 117-228, 136 Stat. 2305 (2022), “has eliminated any basis upon which to assert reliance.” Pet.

38-39. Respondents agree that the Act prohibits the

federal government and States from refusing to recognize marriages legally entered into in any State and

from denying any “right or claim arising from such a

marriage.” 28 U.S.C. § 1738C(a). But the Act does not

prevent States from banning same-sex weddings

within their borders, meaning that, if Obergefell is

overturned, couples may not be able to marry in their

home communities and places of worship. Overruling

Obergefell would also affect institutions—including

businesses, universities, and the military—that rely

on the ability of same-sex couples to marry in the

States where they operate, in order to recruit and retain talent. More broadly, a statute does not provide

the kind of durable protection afforded by a constitutional right. Those concerns further support the conclusion that this Court should not revisit Obergefell.

37

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Michael J. Gartland

DELCOTTO LAW GROUP

PLLC

201 N. Upper St.

Lexington, KY 40507

Joseph D. Buckles

BUCKLES LAW OFFICE

149 N. Limestone

Lexington, KY 40507

OCTOBER 8, 2025

William Powell

Counsel of Record

Kelsi Brown Corkran

Samuel P. Siegel

INSTITUTE FOR

CONSTITUTIONAL ADVOCACY

AND PROTECTION,

GEORGETOWN LAW

600 New Jersey Ave. NW

Washington, DC 20001

(202) 661-6629

whp25@georgetown.edu