U.S. Sen. John Cornyn of Texas called the Supreme Court's marriage equality ruling an "edict" and an example of policy-making by the court when questioning nominee Ketanji Brown Jackson during her confirmation hearing Tuesday.
Cornyn, a Republican, posited that the 2015 Obergefell v. Hodges decision created a new right that is not in the U.S. Constitution, and he questioned the court's authority to make the decision, as 32 states had passed laws or constitutional amendments against marriage equality. He brought up a conflict with religion as well.
"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, 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?" Cornyn asked.
"That is the nature of a right," Jackson responded. "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."
The Obergefell ruling -- which Cornyn appeared to call "Oberfelt" -- does not require any religious institution or clergy member to perform a marriage that goes against their beliefs. There have been questions before the Supreme Court and lower courts about whether businesses and nonprofit groups have a right to refuse service to same-sex couples on the basis of beliefs about marriage.
In the 2018 Masterpiece Cakeshop ruling, the Supreme Court vacated the Colorado Civil Rights Commission's finding that cakeshop owner Jack Phillips had committed illegal discrimination in refusing to create a custom wedding cake for a same-sex couple. The court found that the commission had shown insufficient respect for Phillips's religious beliefs, but it limited the ruling to that case rather than establishing a broad right to discriminate. The court took a similarly narrow view in ruling last year that an adoption and foster care agency could still work for the city of Philadelphia despite refusing to serve same-sex couples, in conflict with the city's antidiscrimination law. The high court has now agreed to take up the case of a website designer who objects to creating wedding websites for same-sex couples.
Because of pending cases, Jackson said she was limited in what she could say about potential conflicts between marriage rights and religious beliefs. But Cornyn pressed on, saying that Obergefell was decided under a judicial philosophy known as "substantive due process," and he contended that rulings such as Dred Scott, the pre-Civil War decision that upheld the legality of slavery, were decided on the same basis. "I don't quite remember the basis of Dred Scott," Jackson replied.
She also said judges have interpreted the Fourteenth Amendment to the Constitution, which includes the right to due process of law, to include not just procedural rights but personal rights involving intimate relationships.
On other topics, Cornyn accused Jackson of calling former President George W. Bush and Defense Secretary Donald Rumsfeld "war criminals" in a case related to terrorism defendants; she said she did not recall such language. In an earlier exchange about her defense of people accused of terrorism, Sen. Lindsey Graham of South Carolina stormed out of the hearing, obviously unsatisfied with Jackson's answers.
She also said she believes the Supreme Court rulings that established and affirmed abortion rights, Roe v. Wade and Casey v. Planned Parenthood, are settled law.
Jackson has been a public defender and a judge on the U.S. District Court for the District of Columbia, and since last year she has been a judge on the U.S. Court of Appeals for the D.C. Circuit, which hears many cases related to federal law. If confirmed, she would be the first Black woman on the Supreme Court.