GOP Sen. John Cornyn of Texas appeared to get Supreme Court nominee Judge Ketanji Brown Jackson somewhat irked Tuesday when he asked a series of questions that resulted in her admitting the right of same-sex couples to marry is not listed in the Constitution.
“The Supreme Court articulated a new, fundamental right, which is the right to same-sex marriage,” Cornyn said during Jackson’s confirmation hearing before the Senate Judiciary Committee, referring to the 2015 Obergefell v. Hodges decision.
Jackson confirmed that she was aware of the decision.
Cornyn went on to note that at the time of the decision, 11 states and the District of Columbia had passed laws sanctioning same-sex marriage. He would go on to argue that was the way the issue should have been handled nationwide.
On the other side of the ledger, in 35 states where the issue had been put on the ballot, voters in 32 of them had opted in favor of keeping the traditional definition of marriage.
The senator asked Jackson if she agreed that marriage is not only a governmental institution, but also a religious one.
He was clearly directing the interchange toward the conflict that arises when the practice of religious beliefs runs up against the newfound right of same-sex couples to marry.
Jackson responded hesitantly, “Well, Senator, marriages are often performed in religious institutions.”
OK, that’s stating the obvious.
“I’m aware that there are various religious faiths that define marriage in a traditional way,” she added.
Jackson then sought to punt on discussing the issue, saying matters related to same-sex marriage may come up before the Supreme Court.
“Isn’t it apparent that when the Supreme Court decides that something that is not even in the Constitution is a fundamental right … doesn’t that necessarily create a conflict between what people may believe as a matter of religious doctrine or faith and what the federal government says is the law of the land?” Cornyn asked.
Jackson then seemed to argue the “right” to same-sex marriage trumps the First Amendment, tough ground to defend indeed.
“That is the nature of a right,” she said. “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.”
Sen. Cornyn asked Ketanji Brown Jackson whether the SCOTUS ruling establishing a right to same-sex marriage conflicts with the beliefs of some religions.
“That is the nature of a right,” she replied. “When there is a right, it means that there are limitations on regulation.” pic.twitter.com/TP9yF2Q6Ij
— POLITICO (@politico) March 22, 2022
“You agree marriage is not mentioned in the Constitution, is it?” Cornyn asked.
“It is not mentioned directly, no,” Jackson conceded.
“And religious freedom is mentioned in the First Amendment, explicitly, correct?” the senator queried.
“It is,” Jackson responded.
“Do you share my concern that when the court takes on the role of identifying an unenumerated right, in other words, it’s not mentioned in the Constitution … declaring that anything that conflicts with the right is unconstitutional, that it creates a circumstance where those who may hold traditional beliefs, like something as important as marriage, that they will be vilified as unwilling to assent to this new orthodoxy,” Cornyn asked.
Jackson again tried to punt saying, “I’m not in a position to comment,” given related issues may come before the court.
Cornyn then referenced Justice Samuel Alito’s dissent in Obergefell, which highlighted the conflict with religious liberty it was setting up.
“I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools,” Alito wrote.
Similarly Chief Justice John Roberts, in a separate dissent, stated, “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”
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“As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs,” he wrote. “Just who do we think we are?”
Cornyn contended that when the court overrules state law concerning marriage and other issues and creates a right out of whole cloth, it is legislating from the bench.
Jackson turned to the controversial doctrine of substantive due process, when the court points to the Fifth and 14th amendments protections against Americans being denied “life, liberty or property without due process of law.”
“The Constitution doesn’t mention anything about ‘substance’ when it talks about due process,” Cornyn observed. “The 14th Amendment and the Fifth Amendment don’t talk about ‘substantive due process,’ they talk about ‘due process of law,’ correct?”
“Correct,” answered Jackson, looking and sounding agitated.
The most direct interpretation of the due process clauses is that the correct legal procedures must be followed, like a jury trial, before individuals are sent to jail, or lose their life or property.
The court has interpreted the language more broadly to say certain rights are fundamental, like those articulated in the Bill of Rights, and therefore override any state law to the contrary.
The area of greatest controversy is when the “rights” identified by the court are not listed at all in the Constitution.
Marriage is one such fundamental right, deeply rooted in the nation’s traditions, according to the justices.
That right at least squares with the “laws of nature and of Nature’s God” spoken of in the Declaration of Independence, which is the nation’s founding document.
Same-sex marriage has no such grounding.
We need originalists and textualists like justice Alito or Clarence Thomas because they are constrained by the letter of the law.
Cornyn’s line of questioning made it obvious Jackson is not.