Supreme Court justices being given another chance to fix their creation of same-sex ‘marriage’

A legal fight in Kentucky that erupted when same-sex marriage activists demanded a Christian clerk violate state law and grant them a “marriage” license just hours after the Supreme Court created that status in America, now has returned to the Supreme Court.

The case is asking the justices to reverse their decision from 10 years ago, and it uses the same arguments used several years back to successfully overturn Roe v. Wade, that longstanding, and error-loaded, ruling from 1973 that created an abortion right.

The Syracuse Law Review has explained that the arguments used to overturn Roe also could be used against “same-sex marriage.” Neither abortion nor marriage actually is in the U.S. Constitution, so justices over the years have manufactured reasons to support both “rights.”

The analysis, from several years ago, cited the Dobbs decision that overturned Roe for being based on “substantive due process,” a doctrine adopted by some justices over the years to create “implied fundamental rights.”

“Through various opinions, the Court has recognized a right of personal privacy, which has been extended to other activities such as inter-racial marriage, procreation, contraception, family relationships, and child rearing,” the analysis said.

To manufacture same-sex “marriages,” the court relied on “substantive due process” to claim same-sex “marriage” is constitutionally protected.

And the analysis said, “The aftermath of the Dobbs decision spans beyond abortion by calling into question other decisions that were decided on similar grounds to Roe — Obergefell (same-sex marriage), Lawrence (same-sex sexual conduct), and Griswold (contraceptives)—and whether the overturning of Roe presents a similar fate for these decisions.”

Specifically, Justice Clarence Thomas stated at the time, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous’…we have a duty to ‘correct the error’ established in those precedents.”

Now Liberty Counsel has revealed that that case, challenging the existence of the Obergefell decision, the same-sex “marriage” case, is before the court.

It involves multiple attacks on Kim Davis, a former Rowan County clerk in Kentucky.

She was the first victim “jailed, sued, and held personally liable post-Obergefell for her sincerely held religious beliefs on marriage. Believing marriage as a union between one man and one woman, Davis ceased issuing any marriage licenses while she sought an accommodation for her religious beliefs. The courts then used Obergefell, which legalized ‘same-sex marriage’ nationwide, to deny her a religious accommodation that unconstitutionally forced her to choose between her religious beliefs and her livelihood,” Liberty Counsel explained.

“This case began Friday, June 26, 2015, when ‘five lawyers’ on the U.S. Supreme Court released the Obergefell opinion that declared same-sex couples have the right to be ‘married,'” the Liberty Counsel reported.

The dissent at that time pointed out the creation of same-sex “marriage” was, in fact, unrelated to the U.S. Constitution.

Davis under state law had no authority to issue marriage licenses to same-sex couples without specific direction from the state statutes. And doing so would violate her religious beliefs. Despite that Democrat Kentucky Gov. Steve Beshear ordered all clerks to violate state law.

“The Kentucky Senate President sided with Davis and made clear that every action pertaining to marriage is highly regulated by the state. Therefore, any clerk that issued marriage licenses without the sanction of Kentucky law could be held liable for criminal charges. Clerks like Davis were paralyzed. If she followed the governor’s order, she could have been charged with a misdemeanor. If she waited until the legislature acted, she would be sued,” the report said.

Further, Davis, a Christian, could not violate her faith by doing what clearly was barred by biblical teachings.

She asked lawmakers to address the conflict, but meanwhile, a leftist, Judge David L. Bunning, put her in jail.

When a new governor, Matt Bevins, a Republican, took office in Kentucky, he issued an executive order granting clerks of faith a religious accommodation and the state legislature followed by establishing that in state law.

However, several duos who had demanded Davis violate her faith and state law sued her, personally, for not giving them what they demanded.

That their moves were targeted at Davis was documented by the fact they could have gone to multiple other locations for their “licenses” but refused to do so.

And they shared their videos on social media in a campaign of public harassment “to shame and humiliate Davis.”

Two duos eventually sued her for “hurt feelings” and one jury found no damages. The other returned a total judgement of $100,000, to which a judge added $260,000 in lawyers’ fees.

“According to the Eleventh Amendment, a government official acting in an official capacity has “immunity” and cannot be held personally liable. However, the court stripped Davis of this government shield. But even in her personal capacity, Davis (like any person) has an absolute First Amendment defense against a claim solely based on emotional damages, yet the court stripped this away as well,” the legal team said.

Now Liberty Counsel is asking the U.S. Supreme Court to “(1) overturn this unjust judgement against Davis by finding that she has an affirmative First Amendment Defense, and (2) overturn Obergefell v. Hodges.”

The questions being delivered to the Supreme Court include:

1. Whether the First Amendment Free Exercise Clause provides an affirmative defense to tort liability based solely on emotional distress damages with no actual damages in the same manner as the Free Speech Clause under Snyder v. Phelps, 562 U.S. 443 (2011).

2. Whether a government official stripped of Eleventh Amendment immunity and sued in her individual capacity based solely on emotional distress damages with no actual damages is entitled to assert individual capacity and personal First Amendment defenses in the same or similar manner as any other individual defendant like in Synder v. Phelps, 562 U.S. 443 (2011), or does she stand before this Court with no constitutional defenses or immunity whatsoever.

3. Whether Obergefell v. Hodges, 576 U.S. 644 (2015), and the legal fiction of substantive due process, should be overturned.

Liberty Counsel’s petition opens by citing several dissenting justices from the 5-4 Obergefell opinion who predicted it would threaten the religious liberty of those who believe that marriage is a sacred institution between one man and one woman. Notably, Justice Clarence Thomas said that Obergefell would have ‘potentially ruinous consequences for religious liberty.'”

The filing explains, “That is what happened here. Davis was jailed, hauled before a jury, and now faces crippling monetary damages based on nothing more than purported emotional distress.”

The filing warned, “A decision like that where government defendants are stripped of their immunity and stand before a court as an individual without any personal First Amendment defenses ‘would mean government officials shed their constitutional rights upon election, appointment, or other entrance of government service. That cannot be right.'”

Cited is the 2022 Dobbs decision, which declared the Due Process Clause “does not secure any substantive rights,” including abortion.

Liberty Counsel said that means “it does not secure a right to ‘same-sex marriage’ either, and ‘especially not a right to receive a ‘same-sex marriage’ license from a specific government official, regardless of that individual’s religious convictions.”

“If ever there were a case of exceptional importance, the first individual in the Republic’s history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it,” said Liberty Counsel chief Mat Staver.

“Kim Davis’ case underscores why the U.S. Supreme Court should overturn the wrongly decided Obergefell v. Hodges opinion because it threatens the religious liberty of Americans who believe that marriage is a sacred union between one man and one woman.”

Notable is the fact that several of the far-left activists who were on the Supreme Court 10 years ago, whose votes all were required to release the Obergefell opinion, now are not, having been replaced by justices nominated by President Donald Trump.