Supreme Court Protects Gay Marriage – And Reveals What Conservative Justices Really Think

And Thomas didn’t vote to hear it. Neither did Alito. Neither did Roberts.

What The Dog That Didn’t Bark Reveals

The absence of dissents is the story here. When justices believe the Court made a mistake by declining a case, they can note their dissent from the denial of certiorari. It’s a signal that they think the issue deserves hearing.

Thomas has done this repeatedly on cases involving his preferred constitutional theories. Alito has built a career on dissents arguing the Court’s majority gets fundamental rights wrong. Roberts wrote one of the original dissents in Obergefell itself.

None of them thought this case deserved even that minimal signal of interest. That’s not neutrality – it’s a deliberate choice to let the precedent stand without comment.

The conservative legal movement spent years building toward a Supreme Court that would revisit progressive precedents. They got that Court. And when given the opportunity to reconsider same-sex marriage, the Court said no so quietly you almost missed it.

The First Amendment Argument That Went Nowhere

Davis’s lawyers tried to make this about religious accommodation, not marriage equality. They argued she was being forced to choose between her job and her faith – a classic First Amendment conflict that usually attracts conservative judicial interest.

The facts undermined them. Davis wasn’t asking for accommodation – she was demanding the right to prevent anyone in her office from issuing licenses to same-sex couples. She didn’t want an exemption for herself; she wanted to impose her religious beliefs on everyone seeking government services.

That’s not religious liberty. That’s using government power to enforce religious doctrine.

When you work for the government, you don’t represent your personal beliefs – you represent the government’s legal obligations. If those obligations conflict with your conscience, you can seek accommodation or find different work. What you can’t do is unilaterally decide which laws you’ll enforce based on your theology.

The Court’s refusal to hear this case reaffirms that principle without having to write an opinion explaining it.

Why It Takes Four Votes But Got Zero

Supreme Court procedure requires four justices to vote to grant certiorari – to agree to hear a case. With six conservative justices on the current Court, Davis’s lawyers needed to attract just four of them.

They couldn’t find one.

That’s remarkable not because same-sex marriage has become universally accepted among conservative jurists – it hasn’t. It’s remarkable because declining to hear a case requires either agreement with the precedent or a strategic judgment that now isn’t the right time to challenge it.

The three justices who originally dissented from Obergefell could have noted their votes to hear the case without committing to overturning it. That would have sent a signal to religious liberty advocates that the Court takes their concerns seriously, even if this particular case wasn’t the right vehicle.

They didn’t. That omission suggests something more definitive than “not the right case” – it suggests the Court has moved on.

What Happened To The Post-Dobbs Momentum?

When the Court overturned Roe in June 2022, progressive activists warned that other rights were next. Thomas’s concurrence in Dobbs seemed to confirm those fears – he specifically mentioned reconsidering precedents on contraception access, same-sex relationships, and marriage equality.

Two and a half years later, the Court has declined to revisit any of those precedents. Not just declined to overturn them – declined to even hear cases challenging them.

This reveals something important about how the Court actually operates versus the apocalyptic predictions from both sides. Conservative justices may personally disagree with some precedents, but that doesn’t automatically translate into votes to overturn them.

Overturning Roe was different. The Court had spent five decades with a contentious precedent that had never gained broad acceptance, continually generated litigation, and divided the country. Even some legal scholars who supported abortion rights questioned Roe’s reasoning.

Obergefell doesn’t fit that pattern. The country has largely moved on. Same-sex marriage has become legally and culturally normalized. Overturning it would create chaos in hundreds of thousands of existing marriages and provide no clear benefit beyond satisfying ideological opponents.

The Five-Time Marriage Defender of Marriage Sanctity

Kim Davis has been married five times. This fact shouldn’t matter legally – everyone deserves equal protection regardless of their personal history. But it exposes the selective nature of her “sanctity of marriage” argument.

Davis didn’t refuse to issue marriage licenses to people on their second, third, or fourth marriages. She didn’t cite religious objections to licensing marriages that her faith might consider adulterous. She specifically targeted same-sex couples.

That selectivity reveals this was never really about protecting religious doctrine uniformly applied. It was about targeting a specific group for unequal treatment under the guise of religious conviction.

The Court’s refusal to hear her case suggests the justices saw through that distinction. You can’t claim to defend marriage’s religious significance while ignoring the religious rules you find personally inconvenient.

What Conservative Commenters Got Right

The Fox News comment section – not typically a bastion of progressive thought – largely agreed with the Court’s decision. One commenter called it “true liberty – freedom of choice without government interference.” Another noted: “If you’re in a job you cannot do because of religious convictions, you need to leave that job.”

This reflects something broader: Most Americans, including many conservatives, don’t want the government deciding who can marry whom. The libertarian streak in American conservatism values freedom from government interference more than using government power to enforce traditional morality.

That’s not because Americans have abandoned traditional values – it’s because they’ve concluded that government enforcement of those values contradicts something more fundamental: individual liberty.

When forced to choose between “government should reflect my values” and “government should leave people alone,” enough conservatives choose liberty that cases like Davis’s become unwinnable.

The Separation of Church and State That Actually Matters

Multiple commenters invoked “separation of church and state” – usually a phrase that triggers conservative pushback. But in this context, conservatives embraced it.

The distinction matters. Separation of church and state doesn’t mean removing religion from public life. It means government officials can’t use their religious beliefs to deny legal rights to citizens.

Davis was free to believe same-sex marriage violates her faith. She was free to refuse to attend same-sex weddings. She was free to advocate for laws restricting marriage. What she couldn’t do was use her government position to prevent same-sex couples from exercising their legal rights.

That’s not persecution of religious belief – it’s the basic requirement of living in a pluralistic society where government serves everyone, not just people who share the clerk’s theology.

Why The $100,000 Damages Award Matters

The lower court ordered Davis to pay $100,000 in damages to the couple she refused to serve, plus their legal fees. She’s appealing that too, but the Supreme Court’s decision Monday likely dooms that appeal.

This isn’t punishment for holding religious beliefs. It’s compensation for violating someone’s constitutional rights while acting under color of law. When a government official uses their position to deny legal rights to citizens, damages are the remedy.

The size of the award reflects how seriously courts take these violations. Davis didn’t just delay a marriage license – she used her government authority to try to nullify a constitutional right. That’s not a minor procedural error; it’s a fundamental violation of her duties.

The Supreme Court’s refusal to intervene sends a message: If you’re a government official who violates people’s rights based on your personal beliefs, you’ll pay for it.

What This Tells Us About The Court’s Actual Priorities

The current Supreme Court has taken up numerous politically charged cases this term. They’re reviewing tariff powers, transgender identification on passports, and multiple challenges to federal regulations. They’re not shy about wading into controversial territory.

But they won’t touch same-sex marriage. That choice reveals their priorities more clearly than any opinion could.

The Court is willing to reconsider precedents about federal administrative power, executive authority, and regulatory scope. Those are questions about how government operates, where reasonable people can disagree about constitutional boundaries without denying anyone’s fundamental rights.

Reconsidering same-sex marriage would do something different – it would strip rights from people who currently have them, invalidate hundreds of thousands of existing marriages, and create legal chaos for families across America. And for what? To satisfy activists who can’t accept that they lost this fight a decade ago?

The Court’s conservative majority isn’t interested. That’s the real news in Monday’s non-decision.

The Precedent That’s More Settled Than Abortion Ever Was

Roe v. Wade lasted 49 years before being overturned. Throughout those five decades, it remained legally contested, politically divisive, and vulnerable to challenge. States continually tested its boundaries, activists on both sides organized around it, and the Court regularly revisited related questions.

Obergefell is only 10 years old, but it’s already more settled than Roe ever was. States aren’t challenging it. Lower courts aren’t creating circuit splits that need resolution. The country has moved on to other battles.

That’s partly because marriage equality doesn’t generate the same moral intensity as abortion – but it’s also because same-sex marriage created a simpler, more stable legal framework. Either couples can marry or they can’t. There’s no sliding scale of trimesters, no balancing of competing interests, no endless litigation over exceptions and alternatives.

The Court seems to recognize this. Overturning Obergefell wouldn’t return authority to the states for ongoing experimentation – it would just create chaos while ultimately landing back at nationwide marriage equality through some other constitutional route.

What Davis’s Lawyers Got Wrong About Legacy

Davis’s lawyers argued: “If ever a case deserved review, the first individual who was thrown in jail post-Obergefell for seeking accommodation for her religious beliefs should be it.”

They misread what makes her a historical figure. Davis isn’t notable because she was the first to seek religious accommodation – she’s notable because she was among the last to openly resist a civil rights expansion after it became law.

Her legacy isn’t as a religious liberty martyr. It’s as a reminder that every expansion of rights faces resistance from officials who believe their personal convictions should override legal obligations. Those officials always lose eventually, because the Constitution protects rights from government officials, not for them.

The Supreme Court’s decision Monday adds one final chapter to that legacy: When given the chance to vindicate her resistance, the Court declined so definitively that three justices who originally agreed with her wouldn’t even vote to hear her case.

The Conservative Victory That Looks Like Defeat

Religious conservatives lost the battle over same-sex marriage a decade ago. But Monday’s decision reveals they may have won something more important: confirmation that the Court won’t overturn major civil rights precedents just because it has the votes.

That matters beyond same-sex marriage. If the Court had taken Davis’s case and used it to reconsider Obergefell, it would have signaled that any precedent the conservative majority personally dislikes is vulnerable. That kind of instability serves nobody’s interests – not even conservatives who want the Court to take their side on future issues.

A Court that overturns precedents casually becomes unpredictable and loses legitimacy. A Court that respects precedent even when it disagrees with the original reasoning maintains institutional credibility while selectively addressing genuine constitutional problems.

Monday’s decision suggests this Court understands that distinction. They’ll revisit precedents about government structure and administrative power. They won’t overturn civil rights protections that Americans have built their lives around just because some activists can’t accept defeat.

That’s not a progressive victory. It’s a conservative Court acting conservatively – preserving stability, respecting precedent, and declining to create constitutional chaos without compelling reason.

What The Silence Means Going Forward

The Court’s decision Monday came without explanation and without dissent. That silence is its own message.

When the Court wants to send signals about its thinking, it issues opinions. When it wants to preserve options for future cases, justices note their dissents from denials of certiorari. When it wants to encourage continued litigation on an issue, it grants review on narrow technical grounds.

The Court did none of those things. It just said no – quietly, definitively, with no invitation to keep trying.

For activists hoping the Court would reconsider same-sex marriage, that silence should be deafening. The case isn’t closed because the Court wrote a new opinion defending Obergefell. It’s closed because the Court won’t even discuss reopening it.

That’s not how you signal openness to revisiting precedent. That’s how you tell litigants to move on because this fight is over.