The Foundation for Moral Law has filed an amicus curiae brief in the U.S. Supreme Court in Ermold v. Davis, a case arising from the prosecution of Kentucky clerk Kim Davis, who refused to issue same-sex marriage licenses that bore her name after the Court’s 2015 Obergefell v. Hodges decision. Represented by attorneys John Eidsmoe, Roy S. Moore, and Talmadge Butts, the Foundation filed in support of neither party, urging the Court to reconsider Obergefell and restore both religious liberty and state sovereignty to their rightful place.

The Foundation’s brief contends that Obergefell— which judicially redefined marriage to include same-sex unions— was wrongly decided and constitutionally illegitimate. By removing marriage from the democratic control of the states and inventing a right not found in the Constitution, the Court violated the separation of powers, undermined state sovereignty, and placed religious liberty in peril.

The Foundation presents Alabama’s unique experience as a case study in the turmoil caused by Obergefell. Despite an overwhelming state constitutional amendment (81% in favor) defining marriage as between one man and one woman, Alabama officials were forced into a constitutional crisis—caught between conflicting commands from the U.S. Supreme Court and their own state constitution. When Alabama Chief Justice Roy Moore insisted that probate judges continue to follow Alabama law until properly superseded, he was removed from office. This, the brief argues, demonstrates the chaos and coercion produced when federal judges usurp powers reserved to the people and their states.

Before Obergefell, marriage was understood as a matter for the states—recognized even in United States v. Windsor (2013). Two years later, however, Justice Kennedy reversed course, imposing a nationwide mandate for same-sex marriage. The Foundation argues this abrupt reversal trampled the rights of more than thirty states that had enacted laws affirming traditional marriage and destabilized the constitutional balance between federal and state authority.

The brief also warns that Obergefell set the stage for widespread persecution of Americans who hold biblical beliefs about marriage. The imprisonment of Kim Davis, the forced resignations of county clerks, and the legal battles of Jack Phillips (Masterpiece Cakeshop) and Catholic Social Services (Fulton v. City of Philadelphia) illustrate the weak gesture the Court made toward religious freedom. The Foundation asserts that freedom of religion is not merely the right to believe or teach, but to live and act according to one’s faith—rights that Obergefell has eroded.

Drawing on the writings of Jefferson, Joseph Story, and Madison, the brief emphasizes that rights of conscience come from God, not the State. The judiciary has no authority to compel citizens to violate those rights or to redefine the divine institution of marriage, which Scripture defines as the union of one man and one woman (Genesis 2:18–24; Matthew 19:6).

Using Abraham Lincoln’s famous illustration—‘calling a tail a leg doesn’t make it a leg’—the Foundation argues that redefining marriage by judicial decree does not alter reality or divine law. Marriage, as established by God, predates the state and forms the foundation of family and civilization. To claim judicial authority over this sacred institution, the brief asserts, is to claim authority over God Himself.

The Foundation for Moral Law urges the Supreme Court to grant certiorari and reconsider Obergefell v. Hodges. Just as the Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, the Foundation maintains that Obergefell should likewise be overruled—not only because it defies the Constitution, but because it defies the laws of nature and of nature’s God upon which America was founded.