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By Sean O'Driscoll
Senior Crime and Courts Reporter
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A federal appeal court is being asked to apply Clarence Thomas's conservative view to birth control, homosexuality and same-sex marriage.
The case is being taken by a former Kentucky county clerk who refused marriage licenses to gay couples.
Kim Davis became a conservative cause célèbre after the Supreme Court legalized same-sex marriage in 2015. The decision made it illegal for any state, the District of Columbia, and U.S. territories to deny a marriage certificate to same-sex couples, citing the Due Process Clause and the Equal Protection Clause of the 14th Amendment of the Constitution.
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Through her lawyers, Davis is now arguing that the 2015 Obergefell v. Hodges decision should be overturned on religious freedom grounds.
Newsweek sought email comment from Davis' attorney on Tuesday.
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In her challenge before the Sixth Circuit Court of Appeals, Davis' attorneys argue that "Obergefell should be overturned for the same reasons articulated by the court in Dobbs"—referring to the case that overturned the Roe v. Wade constitutional right to abortion.
They argue that, like Dobbs, Obergefell "was wrong when it was decided and it is wrong today because it was based entirely on the 'legal fiction' of substantive due process, which lacks any basis in the Constitution."
In his concurring opinion in Dobbs, Thomas argued that the Supreme Court should overrule not only same-sex marriage but also the legalization of homosexual acts in 2003 in Lawrence v. Texas, 2003 and the right of married couples to use birth control in Griswold v. Connecticut in 1965.
Thomas referred to these substantive due process decisions as "demonstrably erroneous."
The Supreme Court has long used the due process clause of the 14th amendment to introduce a more liberal approach to social issues and it was a major part of the Supreme Court's reasoning in the Obergefell same-sex marriage case.
Thomas sharply criticized this approach in Dobbs and suggested that using the 14th amendment for liberalization should come to an end.
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In her new brief in the same-sex marriage case, Davis' lawyers argue that her appeal shows that there is a need to "reconsider" the Lawrence homosexuality case and the Griswold birth control case as well.
The 2015 Obergefell case was won by a narrow 5-4 majority, with the chief justice, John Robert, dissenting and same-sex marriage has been considered legal in the U.S. ever since.
Following a major conservative swing in the court in the Trump era appointments of Brett Kavanaugh and Amy Coney Barrett, the court may now revisit same-sex marriage.
Davis' challenge is an offshoot of a lawsuit taken by a gay couple who were refused a marriage license by Davis.
Davis is appealing a jury's 2023 decision that she should have to pay the couple $100,000 in damages.
In a highly publicized case, Davis had refused a marriage license to David Ermold and David Moore in 2015, arguing that to do so was compelling her to act against her religious beliefs.
In a new brief to the Sixth Circuit Court of Appeals, her attorneys claim that "Obergefell … was wrong when it was decided and it is wrong today because it was based entirely on the 'legal fiction' of substantive due process, which lacks any basis in the Constitution."
The Sixth Circuit has not yet said if it will hear arguments in the case.
Davis is represented by the Florida-based conservative group, Liberty Counsel.
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