Liberty Counsel filed a supplemental brief to the U.S. Supreme Court in Davis v. Ermold, a case that raises the First Amendment Free Exercise Clause as a defense and which also challenges the 2015 Obergefell v. Hodges opinion. The supplemental brief brings to the Supreme Court’s attention how the Texas Supreme Court unanimously amended their judicial ethics rule to allow state judges to decline officiating wedding ceremonies that conflict with their religious beliefs. The change in the ethics rule was in direct response to a question that the Fifth Circuit Court of Appeals directed to the Texas Supreme Court regarding state judges who refuse to preside over same-sex wedding ceremonies because of their sincerely held religious beliefs that marriage is the union of one man and one woman. 

The High Court will meet in a private conference this Friday, November 7, to consider whether to take up the case of Kim Davis. Liberty Counsel represents Davis, the former Rowan County Kentucky Clerk who was the first victim jailed, sued, and held personally liable post-Obergefell for her sincerely held religious beliefs on marriage.

In Davis v. Ermold, Plaintiffs David Ermold and David Moore sued Davis to force her to put her name on their marriage license as a mockery to her Christian beliefs that marriage is meant to be between one man and one woman. Davis refrained from issuing all marriage licenses until she received a religious accommodation and now faces liability for “hurt feelings” that stem for her religious views on marriage. Davis argues that she as a government official—stripped of Eleventh Amendment immunity and sued in her personal capacity—still has a First Amendment defense against “hurt feelings.”

On October 24, 2025, the Texas High Court certified an amendment to the state’s Code of Judicial Conduct that says declining to perform a wedding based on a sincere religious belief does not violate the state’s rules on judicial impartiality. The new Texas judicial policy allows judges to refrain from performing “same-sex marriages,” which has specific implications related to Davis’ Obergefell challenge.

“The Texas Supreme Court’s unanimous order reflects the judgment of a State’s highest court that public officials may decline to engage in certain state action because of their sincerely held religious beliefs without compromising their impartiality—and without being subject to discipline,” reads the supplemental brief. 

While the Sixth Circuit Court of Appeals ruled that Davis may not invoke a First Amendment defense for refusing “a religiously objectionable state action,” the Texas Supreme Court, in contrast, presumes that public officials maintain their religious protections when vested with state authority, wrote Liberty Counsel.

This development is a “concrete example” of the Texas judiciary trying to reconcile the Obergefell opinion with the First Amendment’s religious-liberty protections for public officials, the brief notes. The Texas amendment highlights that the tension between Obergefell and the First Amendment “remains active, unsettled, and consequential.”

Liberty Counsel Founder and Chairman Mat Staver said, “Obergefell v. Hodges cannot not override the free speech and religious exercise protections of the First Amendment. Texas judges, as well as Kim Davis, have the religious liberty to decline their involvement in wedding ceremonies involving same sex couples. With divergent approaches to reconciling Obergefell and the First Amendment in the courts, the U.S. Supreme Court has the chance to reconcile the religious liberty protections of government officials with state actions regarding marriage. Like the abortion decision in Roe v. Wade, Obergefell was egregiously wrong from the start. This opinion has no basis in the Constitution. The High Court should overturn Obergefell and correct this grievous error.”