Marriage equality is once again in the headlines, and as a queer person and an estate planning attorney, the concern is palpable. A recent petition to the U.S. Supreme Court by Kim Davis — the former Kentucky clerk who famously refused to issue marriage licenses to same-sex couples — has sparked alarm. Davis has recently asked the Court not only to review her own legal case to avoid paying a couple’s legal fees and damages for emotional distress, but also to overturn Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage nationwide.
It’s no surprise that many LGBTQ+ people are worried. Marriage equality isn’t an abstract legal concept — it’s about our families, our homes, and our dignity. That fear is valid. At the same time, it’s important to understand how the Court decides which cases to hear and why the Davis petition may be an unlikely vehicle for overturning Obergefell.
Let’s break this down.
What’s Actually Happening with the Kim Davis Case?
Here’s the reality: every year, around 7,000-10,000 people ask the Supreme Court to hear their case. The Court agrees to hear only about 100 — that’s less than 2% of petitions.
In Davis’s case, at least one justice has asked for a formal response from the other side, a small step that makes her petition somewhat more likely to get attention. But her request to overturn Obergefell doesn’t fit the Court’s usual criteria for taking a case. There’s no major “circuit split” (disagreement among appellate courts), and Davis raised the Obergefell question late in the process. Even conservative justices instead prefer a clear, well-litigated record before weighing in.
Further, even if the Court took the case, there’s no clear majority ready to overturn Obergefell. Unlike the lengthy crusade to reverse Roe v. Wade, which involved decades of organized advocacy, litigation, and a preexisting circuit split, there’s no comparable push targeting marriage equality. Although concern about the Court’s hostility to LGBTQ+ rights is justified, marriage itself does not appear to be in their sights right now.
Bottom line: the odds of Obergefell being overturned in this case are low — not zero, but low.
Colorado’s Marriage Protections Are Especially Strong
While Obergefell currently protects same-sex marriage nationwide, Colorado has taken steps to safeguard marriage equality regardless of what happens federally:
- Constitutional Protection – In 2024, Colorado voters removed the outdated ban on same-sex marriage from our state constitution by a margin of 64% to 36%. That means our highest state law now affirms, rather than prohibits, marriage equality.
- Statutory Protection – In 2025, the Colorado legislature passed SB25-014, which explicitly affirms the right to marriage between two people, regardless of gender.
- Public Support – Colorado, along with Americans generally, show strong majority support for marriage equality (upwards of 70%), making political backtracking unlikely.
Even in the improbable event the U.S. Supreme Court were to overturn Obergefell, marriage equality would remain legal in Colorado. Where the impact would be felt most is in states without their own protections, and potentially at the federal level if Congress ever repealed or weakened the Respect for Marriage Act, which currently requires federal recognition of marriages validly performed in any state.
Estate Planning: Balancing Vigilance with Peace of Mind
I’m not here to tell you there’s nothing to worry about, particularly if the Court does agree to hear the question on Obergefell. I am here to tell you that right now, the bigger risk is emotional exhaustion from constant fear rather than an imminent loss of marriage rights.
Here’s what we can do:
- Stay informed about significant developments at the Supreme Court.
- Support advocacy efforts to defend LGBTQ+ rights nationwide.
- Maintain estate planning documents (wills, beneficiary designations, powers of attorney, health care directives), to protect inheritance rights, spousal decision-making etc., no matter what happens in the legislatures and the courts.
- Obtain court orders or adoption papers and designate guardians for any minor children.
- Consider adding a revocable living trust. A trust isn’t strictly necessary in Colorado, but it can provide added peace of mind by avoiding probate, keeping affairs private, insulating against family conflict, and ensuring assets pass without delay.
Our relationships are valid and worth protecting. And right now, in Colorado, they are legally secure, but estate planning is all about peace of mind in worst-case scenarios.
If you have questions about how to make sure your marriage and family are protected, no matter what happens in Washington, I’m here to help.
