Kim Davis is done. The Supreme Court is not reconsidering Obergefell. What happens now?

There is a reason people were afraid that the Supreme Court would take up case. The reason is the Supreme Court itself. Here's why I'm taking this whole experience seriously.

Kim Davis is done. The former Rowan County clerk’s longshot attempt to get the justices to revisit 2015’s marriage equality ruling was rejected on Monday.

The whole experience provided a good example of why paying attention to people who regularly cover courts and, specifically, the U.S. Supreme Court — and to procedure — matters to having a full understanding of what’s happening.

Although Davis’s request that the court overturn Obergefell v. Hodges was front and center among the influencer crowd and nonlegal publications, it was not the focus of those of us who actually cover the court.

That is so for three key reasons.

Procedurally, there was a serious question about whether Davis had forfeited the argument in the case below — a point noted by Judge Helene White in her opinion for the court at the U.S. Court of Appeals for the Sixth Circuit:

Second, and also procedurally, this was an awkward vehicle to address the issue. This was not a marriage case or even a case over a marriage license. It was, instead, a follow-up case. It was a lawsuit brought by one of the same-sex couples who alleged that Davis had violated their constitutional right to marry by refusing to issue them marriage licenses. And Davis’s primary arguments in response to the lawsuit were First Amendment-based — not about Obergefell.

Those two reasons are likely why no one even wrote on Monday. This was not a good case.

Third, there was no reason to believe that the full court — aside from Justice Clarence Thomas and likely Justice Sam Alito — has any interest in doing what Liberty Counsel’s Mat Staver was seeking: For the Supreme Court to address “[w]hether Obergefell v. Hodges, 576 U.S. 644 (2015), and the legal fiction of substantive due process, should be overturned.“

Staver didn’t just ask for Obergefell to be overturned. He asked the court to go much, much further.

Substantive due process — the protection of fundamental rights through the Fifth and Fourteenth Amendments “due process” guarantees — is a creature of an earlier, more progressive court, providing many key protections that we take for granted. Any expansions of its protections, however, have been heavily disfavored for decades. In a 1997 case unsuccessfully challenging Washington’s ban on assisted suicide, then-Chief Justice William Rehnquist laid out what has become the uphill-climb test for expanding the coverage of substantive due process.

So, what is substantive due process? Rehnquist wrote:

The Due Process Clause guarantees more than fair process, and the “liberty” it protects includes more than the absence of physical restraint. … The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. … In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to marry; to have children; to direct the education and upbringing of one’s children; to marital privacy; to use contraception; to bodily integrity; and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.

Then, though, Rehnquist turn to what the court’s majority held were its limits. He continued:

But we “ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” … By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.

Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” … and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” … Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest.

Although Thomas joined that opinion, he wants all of that gone. He has held that position for years. Most recently, he wrote about this in his concurring opinion in 2022’s Dobbs v. Jackson Women Health’s Organization. While the majority that day overturned Roe v. Wade, Thomas wrote separately to declare that “‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” is an “incorrect reading of the Due Process Clause,” and that “the ‘legal fiction’ of substantive due process is ‘particularly dangerous.’” Specifically, he stated, “[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.“

No one joined him that day. And while he and Alito might desire to do so, there was no reason to believe that the court as a body is open to considering — let alone taking — that extreme sort of a step now.

Despite that, Staver submitted a Supreme Court certiorari petition with a question that amounted to taking up Thomas on his request. And fundamentally changing America.

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That didn’t happen on Monday, and that’s a good thing — even if it was the expected outcome. That doesn’t mean we shouldn’t — and I shouldn’t — take this whole experience seriously.

Even as I personally got extremely frustrated at times by the coverage from some corners, the fear people had is real. The reason the stories went viral is because the Supreme Court has made it clear that law is more a matter of will than of principle. That is a legitimate fear, even if I think it was exploited, knowingly or unknowingly, in this case.

The lesson I think we should take from this whole experience is serious — and two-fold.

First, the Mat Stavers of the world — and he is certainly not alone — will not stop. Although the 2025 Supreme Court might not have been open to this wholesale revision of our understanding of what it means to live in this nation, some justices on it are. And things could change, more quickly than we might think possible. If the court changes in composition in the coming years, if Republicans succeed in keeping control of Congress (especially the Senate) in the midterms, and certainly if Republicans maintain control of the White House into the 2030s, the Supreme Court absolutely could take up such a case.

And it wouldn’t only be marriage equality in doubt.

Second, and in the meantime, there are other aims from the right that currently have support from the Supreme Court’s majority.

The Supreme Court’s Republican appointees appear to be extremely opposed to finding any protections in law for transgender people — and they haven’t yet even heard this term’s case over anti-trans sports bans. The majority also is very sympathetic to free speech and free exercise First Amendment claims — like this term’s conversion therapy ban case — that have the effect of excluding LGBTQ people or same-sex couples from the law’s protections.

It’s not just LGBTQ cases. The Voting Rights Act has long been targeted by Chief Justice John Roberts, who replaced Rehnquist two decades ago. The majority has sided with the Trump administration in all but the most clearly lawless of its anti-immigrant efforts. Unless you stormed the Capitol on January 6 or are accused of corruption, the criminal law decisions from the Supreme Court almost always side with the government. And, businesses do well before this Supreme Court, particularly when they are fighting environmental regulations or are opposed by labor interests or individual customers or employees.

There is much for the left to challenge — and be worried about — coming out of this Supreme Court. Both today, and moving forward.

This is why focus on legal journalism is so important. It’s why I do this — and will keep doing so to explore, investigate, explain, and inform.