U.S. Sen. John Cornyn (R-Texas) sought to re-litigate the fight over whether same-sex couples have the right to marry, grilling Supreme Court nominee Ketanji Brown Jackson over the issue during her confirmation hearing on Tuesday.
For nearly 28 minutes of his allotted half-hour, Cornyn peppered Jackson — the first Black woman to be nominated for a seat on the high court — with questions about same-sex marriage and the proper role of the judiciary, opining that the Supreme Court created a new right that is not enumerated in the U.S. Constitution when it declared 32 states’ bans on same-sex marriage unconstitutional in its 2015 Obergefell v. Hodges decision.
Noting that a right to marriage is not explicitly mentioned in the Constitution, Cornyn asked Jackson whether she agreed with the proposition that marriage is a religious institution as well as a governmental institution, to which Jackson responded that marriages are often performed in religious institutions. Cornyn pressed her, asking if many major religions embrace a traditional definition of marriage, a fact that Jackson affirmed.
“Do you see that when the Supreme Court makes a dramatic pronouncement about the invalidity of state marriage laws that it will inevitably set in conflict between those who ascribe to the Supreme Court’s edict and those who have a firmly held religious belief that marriage is between a man and a woman?” asked Cornyn.
“Well, Senator, these issues are being litigated, as you know, throughout the courts, as people raise issues. And so I’m limited in what I can say about them,” Jackson responded, before being cut off by Cornyn.
“Isn’t it apparent that when the Supreme Court decides that something that is not even in the Constitution is a fundamental right, and no state can pass any law that conflicts with the Supreme Court’s edict, particularly in an area where people have sincerely held religious beliefs?” Cornyn continued. “Doesn’t that necessarily create a conflict between what people may believe as a matter of their religious doctrine or faith and what the federal government says is the law of the land?”
“Well, senator, that is the nature of a right,” Jackson replied. “That when there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs.”
While the Obergefell ruling does not require any religious institution or clergy member to perform a marriage that is contrary to their religious beliefs, Cornyn maintained that the decision was an example of judicial activism, referring to when judges overstep their role and assume the duties of legislators by creating policy through their decisions.
“Do you share my concern that when the court takes on the role of identifying an enumerated right — in other words, [one that] is not mentioned in the Constitution — and creates a new right declaring that anything conflicting with that is unconstitutional, that it creates a circumstance where those who may hold traditional beliefs on something as important as marriage, will be vilified as unwilling to assent to this new orthodoxy?” asked Cornyn.
Jackson responded that she understood that concern, but declined to offer her personal views, noting that there are currently cases addressing marriage-related issues pending before both lower courts and the Supreme Court.
In 2018, the Supreme Court vacated a finding by the Colorado Civil Rights Commission that a cakeshop owner had discriminated against a same-sex couple by refusing to create a custom-made cake for their wedding. The high court found, in that case, that the commission had failed to show sufficient respect for the baker’s religious beliefs, but declined to establish a broad right allowing those with “sincerely held” religious beliefs to discriminate against LGBTQ individuals or same-sex couples.
Similarly, the court ruled last year, on narrow grounds, that the city of Philadelphia had violated Catholic Social Services’ right to free exercise of religion after it refused to contract with the agency after learning CSS refused to place children with same-sex foster parents. The court found that nondiscrimination laws — like the one in place in Philadelphia — must be generally applicable and neutral to religion.
Earlier this year, the court agreed to take up the case of a website designer who is seeking an exemption to Colorado’s nondiscrimination law so she can refuse to provide wedding-related services to same-sex couples.
Cornyn’s obsession with same-sex marriage reveals a desire — still held by many, especially within the Republican Party — on the part of lawmakers to re-litigate the question of same-sex marriage and leaves little doubt that many would welcome a reversal of the Obergefell decision.
At least two sitting Supreme Court justices, Samuel Alito and Clarence Thomas, have previously opined that the high court wrongly bypassed the democratic process by issuing its decision in the Obergefell case, thereby failing to create exemptions or accommodations for religious opponents of same-sex marriage and allowing such individuals to be branded as “bigots” for refusing to condone same-sex nuptials.
Echoing Thomas and Alito, Cornyn continued to press Jackson on whether she and other judges adhere to a judicial philosophy known as “substantive due process,” the idea that due process not only protects certain legal procedures, but also certain rights unrelated to procedure.
“Why isn’t substantive due process just another way for judges to hide their policymaking under the guise of interpreting the Constitution?” he asked.
“Well, Senator, the justices have interpreted the Due Process Clause of the Fourteenth Amendment to include a substantive provision, that the rights to due process [include] not just procedural rights relative to government action, but also the protection of certain personal rights related to intimacy and autonomy. They include things like the right to rear one’s children, the right to travel, the right to marriage, interracial marriage, the right to an abortion,” Jackson explained.
When asked where justices derive their right to issue rulings contrary to what elected representatives of the people have voted for, Jackson replied, “The court has interpreted the 14th Amendment to include this component, the unenumerated right to substantive due process, and the court has said that that the kinds of things that qualify are implicit in the concept of ordered liberty, or deeply rooted in our nation’s history and tradition. Those are standards that identify a narrow set of activities.”
Cornyn also asked Jackson how many other potential unenumerated rights there could be, a question to which she responded that she could not answer such a hypothetical question. He then continued to rail against the idea of “unelected judges” with lifetime appointments who never have to be held accountable by voters for the decisions they make affecting people’s lives.
“I wish we had a more candid conversation about the source of the power that unelected lifetime tenure judges have to basically rule America when they decide that something is an unenumerated, fundamental right,” he said.
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