The Dictatorship
Kim Davis is asking SCOTUS to revisit its marriage equality ruling — and they just might
Many Americans strongly support marriage for same-sex couples — 68% nationwide, according to a recent Gallup poll. There is a partisan divide, though, and a small but loud cohort is trying hard to turn back the clockas with so many of our country’s advances toward equality, liberty and justice for all.
Momentarily reclaiming this group’s spotlight is former Kentucky county clerk Kim Daviswho recently filed an attention-seeking request that the Supreme Court overturn Obergefell v. Hodges, the 2015 ruling that granted marriage equality for same-sex couples.
Her petition, likely the first direct request of its kind, does not clearly tee up significant legal issues for the Roberts Court, mired as it is in her very particular set of facts, and most commentators agree the court is unlikely to take the case. (At an earlier stage of the litigation, in 2020, Justice Clarence Thomas specifically noted that her case did not “cleanly present” questions about Obergefell to the court.)
Instead, her petition may be best understood as part of a broader effort to drag marriage equality down in the public domain.
Davis says outright that the court should reverse itself on marriage just like it did on abortion.
Some in this effort, like the Southern Baptist ConventionAmerica’s largest Protestant denomination, are prioritizing “overturning of laws and court rulings, including Obergefell v. Hodges” because they “defy God’s design for marriage and family.” Others, including state lawmakershave expressed concern about conscience-objections and the need to “preserve and grow our human race.”
Davis takes a different tack in speaking to the court. She sprinkles in plenty of quotes from the Obergefell dissents, with special attention to Chief Justice John Roberts, who said that the court had overstepped its role and that the marriage ruling “had no basis in the Constitution.” But her core theme is that Obergefell should be tied to the coattails of the court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organizationwhich withdrew a half-century of constitutional protection for abortion.
Davis, whose responsibilities as clerk in Rowan County, Kentucky, included issuing marriage licenses, had her first taste of fame back in 2015 when she brusquely refused a marriage license to a gay couple 10 days after the court’s Obergefell ruling, saying she was acting “under God’s authority.” When one of the prospective spouses said to Davis that she had likely given marriage licenses to “murderer[s]rapists, and people who have done all kinds of horrible things,” Davis responded by saying “that was fine because they were straight.”
Her new petition comes after a decade of litigation in which Davis repeatedly lost her argument that the Constitution protected her treatment of the couple. She offers the Supreme Court two points about her specific situation, but the petition’s main event is in her third question presented. There, in asking the court to decide whether Obergefell “and the legal fiction of substantive due process” should be overturned, the petition most plainly tries to sink marriage equality by tying it to the court’s Dobbs ruling.
For starters, she says outright that the court should reverse itself on marriage just like it did on abortion. She acknowledges this would require the court to disregard its commitment, called stare decisis to stick with its past rulings except in very limited circumstances, but she maintains that, like in Dobbs, the circumstances justify an about-face here.
Then she takes a big legal swing, saying the Constitution does not actually prohibit the government from interfering with rights we have long considered fundamental to individual liberty, such as the right to privacy or to marry.
This legal doctrine, known as substantive due process, is the foundation not only for Obergefell, but also for many of the court’s landmark rulings that protect Americans’ day-to-day lives from government interference, including on contraception access for married couples, sodomy laws and parental rights, among others. And it is this doctrine that had long protected access to abortion until the court found, in Dobbs, that it did not, holding instead that “a right to abortion is not deeply rooted in the Nation’s history and tradition.”
It’s important to see the petition through a wider lens as a call to action for those who would intertwine restrictions on abortion with restrictions on same-sex marriage.
But although Davis urges that getting rid of Obergefell is a logical follow-on to the court’s abortion ruling, the court in Dobbs said otherwise. Indeed, Justice Samuel Alito addressed this point specifically in the majority opinion: “To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” and that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Likewise, Justice Brett Kavanaugh, who joined the Dobbs majority, wrote his own concurring opinion in which he referred directly to Obergefell and a handful of other substantive due process cases, saying that the decision in Dobbs “does not threaten or cast doubt on those precedents.”
To be sure, we cannot predict what the court will do, and there are many reasons to be skeptical of its promises related to Dobbs’ limited scope. Add to that Justice Thomas repeatedly urging his colleagues to reconsider all of the court’s past cases that rely on substantive due process, including Obergefell, as well as the 60-year-old landmark case, Griswold v. Connecticut, that struck down a Connecticut law criminalizing the use of contraception, including by married couples.
Still, especially in this time of often startling political instability, it is important to see Davis’ petition for what it is as a legal matter — thin and weak in its claims and, as a result, just one of thousands of Supreme Court petitions likely to be denied in the coming term.
But it is also important to see the petition through a wider lens as a call to action for those who would intertwine restrictions on abortion with restrictions on same-sex marriage. This reminds us, once again, that the price of liberty — including in areas such as marriage and reproductive health care, long thought to be constitutionally protected from undue government interference — is everyday engagement and eternal vigilance.
Suzanne B. Goldberg
Suzanne B. Goldbergis the Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School and founding director of the Law School’s Sexuality and Gender Law Clinic.
More than a month into the war in Iran, there’s still great uncertainty about why the United States launched this military offensive in the first place. There’s reason to believe, however, that the conflict has something to do with Iran’s nuclear program.
At an unrelated White House event on Tuesday, for example, Donald Trump said“I had one goal: They will have no nuclear weapon, and that goal has been attained.”
It was a curious comment, in part because by the president’s own assessmentIran didn’t have a nuclear weapon before he decided to launch the war, and in part because Secretary of State Marco Rubio this week presented the administration’s four major objectives in the conflict, none of which had anything to do with Iran’s nuclear program.
As for whether Trump’s newly manufactured “goal” has actually been “attained,” The New York Times reported“Unless something changes over the next two weeks — the target Mr. Trump set to begin withdrawing from the conflict — he will have left the Iranians with 970 pounds of highly enriched uranium, enough for 10 to a dozen bombs. The country will retain control over an even larger inventory of medium-enriched uranium that, with further enrichment, could be turned into bomb fuel, if the Iranians can rebuild that capacity after a month of steady bombing.”
The American president has acknowledged that these details are true, though he apparently no longer cares. Ahead of an Oval Office address to the nation about the war in Iran, the Republican spoke to Reuters about his perspective:
Of the enriched uranium, Trump said: ‘That’s so far underground, I don’t care about that.’
‘We’ll always be watching it by satellite,’ he added. He said Iran was ‘incapable’ of developing a weapon now.
The president’s comments definitely have a practical element: It’s been an open question for weeks as to whether Trump intends to try to seize Iran’s uranium stockpile, which would require ground troops and be profoundly dangerous for U.S. military service members.
If Trump told Reuters the truth and is prepared to let Iran keep the uranium it already has because he no longer “cares about that,” it would drastically reduce the likelihood of a ground invasion — one that would almost certainly cost lives.
But there’s another element to this worth keeping in mind as the process moves forward: Ever since the Obama administration struck the original nuclear agreement with Iran in 2015, Trump has insisted that it was wrong to allow the country to hold onto nuclear materials that might someday be used in a nuclear weapon.
A decade later, he’s suddenly indifferent to Iran’s uranium stockpile — which has only grown larger since Trump abandoned the Obama-era policy.
Trump’s goalposts, in other words, are on the move.
Indeed, if the American president’s comments reflect his true perspective (and with this guy, one never really knows), we’re due for a serious public conversation about the motives and objectives for the war. Because as things stand, before the war, Iran had a regime run by radical religious clerics and the Islamic Revolutionary Guard; the country had a significant uranium stockpile; and the Strait of Hormuz was open.
And now, Trump’s apparent vision for a successful offensive will include Iran with a regime run by radical religious clerics and the Islamic Revolutionary Guard; the country still holding a significant uranium stockpile; and the Strait of Hormuz will be open.
Mission accomplished, I guess?
Steve Benen is a producer for “The Rachel Maddow Show,” the editor of MaddowBlog and an MS NOW political contributor. He’s also the bestselling author of “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past.”
Just days after labeling the Senate deal to end the record-breaking shutdown at the Department of Homeland Security a “crap sandwich,” Speaker Mike Johnson, R-La., now appears ready to swallow it whole.
Johnson and Senate Majority Leader John Thune, R-S.D., announced Wednesday they will move forward with the two-track approach senators unanimously backed last Friday. They will pass a bill to fund most of DHS — with the exception of Immigration and Customs Enforcement and parts of Customs and Border Patrol — and then look to approve money for ICE and CBP in a separate reconciliation package.
“In following this two-track approach, the Republican Congress will fully reopen the Department, make sure all federal workers are paid, and specifically fund immigration enforcement and border security for the next three years so that those law-enforcement activities can continue uninhibited,” Johnson and Thune said in a joint statement.
The announcement amounts to a stunning reversal for Johnson, who was facing pressure from conservatives to oppose the Senate deal. Their objections centered on the lack of money for ICE, as well as the Senate’s failure to include new voter ID restrictions, championed by President Donald Trump, with the so-called SAVE America Act.
Instead, Johnson on Friday forced a House vote on an alternative measure to fund all of DHS for eight weeks. While it passed almost entirely along party linesthe stopgap measure stood no chance in the Senate, where Democrats have repeatedly rejected a similar proposal in recent weeks.
Lawmakers were back to square one.
But it turns out, all they needed was a little push from Trump.
Less than three hours before Johnson and Thune’s announcement, Trump urged Republicans — in a lengthy statement on Truth Social — to pass funding for ICE and border patrol through budget reconciliation. While that approach allows GOP lawmakers to bypass Democratic opposition, it requires near-unanimous GOP support.
Trump said he wants the legislation on his desk by June 1 — an ambitious timeline that dramatically increased pressure on Republicans.
“We are going to work as fast, and as focused, as possible to replenish funding for our Border and ICE Agents, and the Radical Left Democrats won’t be able to stop us,” Trump wrote on Truth Social. “We will not allow them to hurt the families of these Great Patriots by defunding them. I am asking that the Bill be on my desk NO LATER than June 1st.”
With Johnson suddenly on board, lawmakers appear poised to end the DHS shutdown just as soon as the House can reconvene. It’s unclear exactly when that might happen. The House isn’t due back until April 14. But Johnson could always call lawmakers back sooner — or look to pass the Senate bill while both chambers are out on recess through a special process.
Because the House never technically sent its 60-day continuing resolution to the Senate, the House could just recede from its amendment of the Senate-passed bill and immediately send the legislation to the president.
Either way, barring another sudden shift from Trump or House leadership, the longest government shutdown in U.S. history may soon be over — and Democrats are already taking a victory lap.
“Throughout this fight, Senate Democrats never wavered,” Senate Minority Leader Chuck Schumer said in a statement. “We were clear from the start: fund critical security, protect Americans, and no blank check for reckless ICE and Border Patrol enforcement.”
“We were united, held the line, and refused to let Republican chaos win,” Schumer added.
Kevin Frey is a congressional reporter for MS NOW.
Mychael Schnell is a reporter for MS NOW.
The Dictatorship
Former White House official: Trump’s Supreme Court attendance could be ‘perceived as intimidation’
President Donald Trump became the first sitting American president to attend oral arguments at the Supreme Court on Wednesday morning when he sat in the audience to hear his administration argue to limit birthright citizenship guarantees for the children of undocumented immigrants and temporary U.S. residents.
Before arguments began, Trump entered the courtroom wearing his usual red tie and sat in the front row of the public seating area. Commerce Secretary Howard Lutnick and Attorney General Pam Bondi were also in the room.
None of the justices acknowledged Trump’s presence while he was in the courtroom.
As the justices began to question U.S. Solicitor General John Sauer, who was arguing on behalf of the administration, Trump remained focused and wore a blank expression.
After Sauer finished his arguments, Trump remained in the courtroom for a few minutes. He got up and quietly left, flanked by Secret Service agents, shortly after Cecillia Wang began her arguments for the ACLU.
Trump’s presence at the court is significant. A sitting president of the United States has never attended oral arguments at the high court before, which is widely considered a sign of respect for the balance of power between the federal government and the judiciary.
Two senior White House officials who requested anonymity to speak about the president’s internal strategy told MS NOW that Trump wanted to listen to the oral argument because “it’s an important case.” The outcome of the case will have sweeping legal implications for Trump’s sprawling immigration enforcement agenda.
“Behind closed doors there’s a realization of the tremendous legal wall this is to climb,” a former White House official familiar with Trump’s thinking who spoke on the condition of anonymity told MS NOW.
“I’m not sure of the calculation from him to go today. It will be perceived as intimidation, and some justices won’t like that,” the former official said.
Trump has shown scorn for the justices for their ruling on his aggressive tariff policy. Earlier this year, Trump said the justices who ruled against the policy were an “an embarrassment to their families.” The president has railed against the justices, including the ones he appointed in his first term, for striking down his sprawling trade agenda.
Trump has pivoted between slamming the justices on social media for the February tariff ruling and calling on them to uphold his birthright citizenship order.
Domicile, the legal term for the place where an individual maintains a permanent home, was at the heart of Sauer’s argument Wednesday. Sauer argued that parents of children born in the U.S. must be domiciled in the United States and demonstrate allegiance to the country in order for their children to be granted citizenship.
Trump left the court after his administration’s argument faced pushback from the court’s key conservative justices, Chief Justice John Roberts and Justice Neil Gorsuch, as well as the rest of the justices on the bench.
As Trump’s motorcade rolled back to the White House, droves of tourists watched and responded with positive and negative gestures. National Guard members were in the crowds, as well.
The case, Trump v. Barbara, centers on the citizenship clause of the 14th Amendment, which has long been understood to confer citizenship to almost all individuals born on U.S. soil: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.”
Shortly after returning to the White House last year, Trump signed an executive order seeking to end that guarantee. The justices will weigh whether the executive order complies with the federal statute that codified that clause.
Trump did not stay to hear more than the first few minutes of the dissenting arguments. But after returning to the White House, he posted a response on his Truth Social platform. “We are the only Country in the World STUPID enough to allow “Birthright” Citizenship!”
Sydney Carruth is a breaking news reporter covering national politics and policy for MS NOW. You can send her tips from a non-work device on Signal at SydneyCarruth.46 or follow her work on X and Bluesky.
Jake Traylor is a White House correspondent for MS NOW.
Fallon Gallagher is a legal affairs reporter for MS NOW.
- ‘No evidence it’s real’: Officials see few signs Trump’s NATO rhetoric is turning into action
- ‘I don’t care about that’: Trump moves the goal posts on Iran’s uranium stockpile
- Mike Johnson caves to the Senate, paving the way for likely DHS shutdown deal
- Former White House official: Trump’s Supreme Court attendance could be ‘perceived as intimidation’
- The Strait of Hormuz is the U.S.’ problem now — whether Trump likes it or not
- Sen. Mark Kelly slams Pete Hegseth for injecting Christian rhetoric into Iran war
- Hill staffers brace for their boss’s ‘TMZ moment’
- Trump’s strategy to calm markets during Iran war is falling flat
- Trump’s MAGA allies have a new plan for mass deportations. It could splinter the coalition.
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