In January 2015, the Supreme Court ruled on Obergefell v. Hodges, legalizing same-sex marriage under the 14th Amendment.
Davis, a Christian, was jailed for six days later that year after refusing to provide a marriage license for a same-sex couple.
Now Davis and Obergefell are back in the news.
As ABC News reported, Kim Davis appears to be one of the only Americans with legal standing to challenge to the aforementioned precedent. Her attorney said that she is the first person in history of the United States jailed because of her religious convictions.
“It's certainly a case, and it's the first one in which a plaintiff has requested a specific release. Davis has standing. She's been harmed by the decision,” attorney Mike Donnelly said on American Family Radio’s Jenna Ellis in the Morning this week.
Donnelly says that standing is an issue because who else could bring a case like this?
While Donnelly believes Davis has a good argument, he says she will have to argue that everybody else was harmed by what the Supreme Court did, and while he believes that’s true, that is not a theory of standing that the court is going to entertain.
Mat Staver from Liberty Counsel also agrees that Davis has standing.
“These plaintiffs want to punish and persecute Kim Davis solely because of her religious beliefs. That's exactly what the dissenters in Obergefell predicted would happen, people of faith and religious values and conscience would be the target of persecution,” says Staver.
In a recent X post Donnelly stated, “Dobbs: Let the people decide. Obergefell: People don’t get to decide. SCOTUS: Should we decide?”
Donnelly told Ellis that the Supreme Court is going to have to choose if the people should decide. He thinks they should, but he questions whether the decision will be overturned.
“Ten years is a very short time for the Supreme Court to consider a case and then actually overturn it. But the court seems to be open to doing those kinds of things,” states Donnelly.
A much different court in 2025
He also reports that that a lot has changed since 2015 and that the court is different than before. This court would never have OK’d same-sex marriage, he says.
“If this current court were ruling on Obergefell, it would be a clear 6-3 decision the other way … Kavanaugh replaced (Anthony) Kennedy, who wrote the Obergefell's decision. He’s far more conservative than Kennedy, and (Amy Coney) Barrett replaced (Ruth Bader) Ginsburg, which was a complete flip. So, a totally different result,” Donnelly says.
Four Supreme Court Justices must vote to hear the case before it's put on the court's docket, but Staver says it's not as much of a longshot as one might think.
“Obergefell is on weak ground. It has been from the very moment it was given. In the Chief Justice's words, 'five lawyers impose their own will, not a legal judgment.’ We've seen it also mentioned in the 2022 Dobbs decision which overturned Roe v Wade. Justice Thomas said then that Obergefell was one of the other cases that needed to be reconsidered and overturned,” Staver said.
The question lies, Donnelly says, on whether the Supreme Court will revisit the precedent in such a short period of time.
The Roe v. Wade decision, which legalized abortion, stood for almost 50 years.
Obergefell’s future could very well be sealed by whether the Court decides to hear the case. Donnelly believes that if they choose to hear the case, then they will overturn it.
“Thirty-one states had passed constitutional amendments to their constitution, defining marriage as what it is, union of a man and a woman. And Justice Kennedy, by a 5-4 decision, one vote on the Supreme Court, swept away the votes of tens of millions of Americans at the state level.”
Some say democracy is at risk and that the Supreme Court has been a threat to democracy for the last 70 years.
For now, Donnelly says that the Court is revaluating its jurisprudence, especially the substantive due process jurisprudence that conjured Obergefell.
“If the states want to recognize a civil union or something of that nature, they have the authority to do that, but the federal Constitution does not talk about marriage. It does not give any of the branches of government, frankly, much authority,” Donnelly states.
He says that the Left wants the federal government to dictate things because they want to centralize power and control what people think. However, there are those that believe in federalism.
The real word on marriage
Not only does Donnelly believe that the 50 states should decide this matter themselves, but he also stands on this as a Christian who believes in God’s Word.
“The Bible is God's word, and it gives us a blueprint to follow and defines marriage very clearly. We have an opportunity here, and the Court will have an opportunity here to decide whether it's on federalism grounds, religious beliefs – all of those things are in play. All the justices in the Supreme Court are human, and you can't just take that out of the equation,” says Donnelly.
Donnelly also believes that the equality argument that Kennedy uses is completely wrong.
“It is a slippery slope,” he said, “because it opens up the question of whether three people or more can be married or humans and animals.
“At the end of the day, men don't marry men. That's not what marriage is, and we don't get to define that, and it's not a question of equality, because any man can marry any woman if they agree.”
Donnelly believes that, when people try to redefine marriage and impose it on others, equal protection is diminished.
The effect on children
He also said that children are involved in the same-sex marriage argument because it’s a public policy argument.
“Marriage is for children, in part, and that's what the Bible teaches as well. Marriage is about creating a family so that parents who have children raise them to know, serve, love, and worship God. That's the purpose of a family,” Donelly says.
However, he says that the Left wants to tear that definition of family down in order to cater and validate peoples’ feelings.
