Sen Cornyn Grills judge Jackson on marriage equality at SCOTUS hearing
Senator John Cornyn Grills judges Ketanji Brown Jackson on marriage equality at SCOTUS hearing
US Senator John Cornyn of Texas called the Supreme Court’s ruling on marriage equality an “edict” and an example of policy-making by the court when he questioned candidate Ketanji Brown Jackson during his confirmation hearing on Tuesday.
Cornyn, a Republican, postulated that the 2015 Oberfell v. Hodges The decision created a new right not found in the US Constitution, and it called into question the court’s authority to make the decision, as 32 states had passed laws or constitutional amendments against marriage equality. He also spoke of a conflict with religion.
“When the Supreme Court decides that something that is not even in the Constitution is a fundamental right and no state can pass a law that conflicts with the Supreme Court’s edict, especially in an area where people sincerely hold religious beliefs, doesn’t that necessarily create a conflict between what people may believe in regards to their religious doctrine or faith and what the federal government says is the law of the land?” asked Cornyn.
“That’s the nature of a right,” Jackson replied. “When there is a right, it means there are limits to regulation, even if people regulate based on their sincere religious beliefs.”
the Oberefell decision – which Cornyn seemed to call “Oberfelt” – does not require any religious institution or member of the clergy to perform a marriage that goes against his beliefs. Questions have been raised in the Supreme Court and lower courts about whether businesses and nonprofit groups have the right to deny services to same-sex couples based on beliefs about marriage.
In the 2018 Masterpiece pastry ruling, the Supreme Court overturned the Colorado Civil Rights Commission’s finding that pastry shop owner Jack Phillips unlawfully discriminated by refusing to create a custom wedding cake for a same-sex couple. The court found that the commission showed insufficient respect for Phillips’ religious beliefs, but limited the decision to that case rather than establishing a general right to discrimination. The court took a similarly narrow view when ruling last year that an adoption and fostering agency could still work for the city of Philadelphia despite its refusal to serve same-sex couples, in dispute with the city’s anti-discrimination law. The high court has now agreed to take up the case of a website designer who objects to the creation of wedding websites for same-sex couples.
Due to ongoing cases, Jackson said she was limited in what she could say about potential conflicts between marriage rights and religious beliefs. But Cornyn insisted, saying Obergefell was decided according to a judicial philosophy known as “substantive due process,” and he argued that decisions such as Dred Scott, the pre-Civil War decision that confirmed the legality of slavery, were decided on the same basis. “I don’t remember Dred Scott’s base very well,” Jackson replied.
She also said the judges interpreted the Fourteenth Amendment to the Constitution, which includes the right to due process, to include not only procedural rights but also personal rights involving intimate relationships.
On other topics, Cornyn accused Jackson of calling former President George W. Bush and Secretary of Defense Donald Rumsfeld “war criminals” in a terrorism-related case; she said she did not recall such language. In an earlier exchange about her defense of those accused of terrorism, Sen. Lindsey Graham of South Carolina stormed out of the hearing, clearly unsatisfied with Jackson’s responses.
She also said she believes in Supreme Court decisions that have established and affirmed the right to abortion, Roe vs. Wade and Casey v. Family planning, are established laws.
Jackson served as a public defender and a judge on the U.S. District Court for the District of Columbia, and since last year has served as a judge on the United States Court of Appeals for the DC Circuit, which hears numerous cases related to the federal law. If confirmed, she would be the first black woman on the Supreme Court.