BY MARK JOSEPH STERN
MARCH 23, 2022
Sen. John Cornyn questions Supreme Court nominee Judge Ketanji Brown Jackson during her Senate Judiciary Committee confirmation hearing on Tuesday.
Win McNamee/Getty Images
For several decades, Republicans used Supreme Court nomination hearings to sharpen their knives against Roe v. Wade. They have long seized the opportunity to make their case against Roe, railing against the decision as a paragon of judicial activism and overreach. During Ketanji Brown Jackson’s hearings this week, GOP senators have, predictably, condemned Roe—but not as much as might be expected. Instead, many senators have turned their attention to a different precedent that’s likely next on their hit list once Roe likely falls this summer: Obergefell v. Hodges, the 2015 decision recognizing same-sex couples’ constitutional right to marry.
Loathing for Obergefell emerged early on Tuesday, when Republican Sen. John Cornyn launched a frontal assault on the ruling, then sought Jackson’s reaction. He began by criticizing “substantive due process,” which holds that the “liberty” protected by the due process clause protects substantive rights, not just procedural ones. The Supreme Court has used this theory to enforce “unenumerated rights” that it deems fundamental, including the right to marry, raise children, use contraception, and terminate a pregnancy. Along with equal protection, it served as the basis of Obergefell. According to Cornyn, however, this doctrine is “just another form of judicial policymaking” that can be used “to justify basically any result.”
Obergefell, Cornyn told Jackson, was “a dramatic departure from previous laws” that contradicted “234 years” of history. Most states, he pointed out, had not yet repealed their bans on same-sex marriage when the “edict” came down. “Do you share my concern,” he asked Jackson, “that when the court … 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, that they will be vilified as unwilling to assent to this new orthodoxy?”
Cornyn then lectured Jackson about the alleged evils of Obergefell. “When the court overrules the decisions made by the people,” he told her, “as they did in 32 of the 35 states that decided to recognize only traditional marriage between a man and a woman, that is an act of judicial policymaking.” The senator went on to claim that “Dred Scott, which treated slaves as chattel property, was a product of substantive due process.” (That’s not actually true, but it marks an obvious effort to sully decisions like Obergefell with the taint of racist origins.) Cornyn also dismissed Obergefell as “court-made law that we’re all supposed to salute smartly and follow because nine people who are unelected, who have lifetime tenure, whose salary cannot be reduced while they serve in office—five of them decide that this is the way the world should be.”
Republican Sen. John Kennedy picked up this baton a few hours later. Kennedy criticized Justice Anthony Kennedy, the author of Obergefell, for refusing to identify a “formula” for fundamental rights and instead going “case by case.”
“Can you understand,” Kennedy asked, “why some Americans go, ‘Wait a minute. These are unenumerated rights. Are justices interpreting the Constitution or are they just deciding a right when they get five votes and it’s just a moral conviction?’ ” Republican Sen. Ben Sasse also grilled Jackson about substantive due process and the court’s authority “to create new fundamental rights.” He returned to the subject on Wednesday, then expressed disappointment when she declined to disavow the doctrine.
In case it wasn’t clear what these senators were up to, Cornyn made it explicit on Wednesday afternoon. “The Constitution doesn’t mention the word abortion,” he lectured Jackson, “just like it doesn’t mention the word marriage.” These senators appear confident that the Supreme Court will overrule the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization, which should come down by June. They are so confident, in fact, that they prodded Jackson to say whether she would abide by Dobbs once she joins the court, rather than fight to revive Roe. But on the whole, Republicans were noticeably less engaged over abortion than they were about same-sex marriage.
It’s easy to see why. The GOP, alongside the conservative legal movement, has built up a massive infrastructure to fight the culture wars. After Roe, it will need a new target, and marriage equality is the obvious choice. Republicans never really gave up on the issue, but rather staged a tactical retreat after Obergefell, pressing for sweeping exemptions from civil rights laws to legalize discrimination against same-sex couples. But after Justices Brett Kavanaugh and Amy Coney Barrett replaced the gay-friendly Anthony Kennedy and Ruth Bader Ginsburg, this retreat slowed to a crawl, and Republicans sought to regain some ground. They pressed the Supreme Court to roll back protections for same-sex couples (to no avail—yet) and have now launched a campaign to mandate anti-LGBTQ discrimination in schools. A GOP legislator in Texas has asked Attorney General Ken Paxton to declare that the state’s ban on same-sex marriage remains valid and enforceable.
For several decades, Republicans used Supreme Court nomination hearings to sharpen their knives against Roe v. Wade. They have long seized the opportunity to make their case against Roe, railing against the decision as a paragon of judicial activism and overreach. During Ketanji Brown Jackson’s hearings this week, GOP senators have, predictably, condemned Roe—but not as much as might be expected. Instead, many senators have turned their attention to a different precedent that’s likely next on their hit list once Roe likely falls this summer: Obergefell v. Hodges, the 2015 decision recognizing same-sex couples’ constitutional right to marry.
Loathing for Obergefell emerged early on Tuesday, when Republican Sen. John Cornyn launched a frontal assault on the ruling, then sought Jackson’s reaction. He began by criticizing “substantive due process,” which holds that the “liberty” protected by the due process clause protects substantive rights, not just procedural ones. The Supreme Court has used this theory to enforce “unenumerated rights” that it deems fundamental, including the right to marry, raise children, use contraception, and terminate a pregnancy. Along with equal protection, it served as the basis of Obergefell. According to Cornyn, however, this doctrine is “just another form of judicial policymaking” that can be used “to justify basically any result.”
Obergefell, Cornyn told Jackson, was “a dramatic departure from previous laws” that contradicted “234 years” of history. Most states, he pointed out, had not yet repealed their bans on same-sex marriage when the “edict” came down. “Do you share my concern,” he asked Jackson, “that when the court … 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, that they will be vilified as unwilling to assent to this new orthodoxy?”
Cornyn then lectured Jackson about the alleged evils of Obergefell. “When the court overrules the decisions made by the people,” he told her, “as they did in 32 of the 35 states that decided to recognize only traditional marriage between a man and a woman, that is an act of judicial policymaking.” The senator went on to claim that “Dred Scott, which treated slaves as chattel property, was a product of substantive due process.” (That’s not actually true, but it marks an obvious effort to sully decisions like Obergefell with the taint of racist origins.) Cornyn also dismissed Obergefell as “court-made law that we’re all supposed to salute smartly and follow because nine people who are unelected, who have lifetime tenure, whose salary cannot be reduced while they serve in office—five of them decide that this is the way the world should be.”
Republican Sen. John Kennedy picked up this baton a few hours later. Kennedy criticized Justice Anthony Kennedy, the author of Obergefell, for refusing to identify a “formula” for fundamental rights and instead going “case by case.”
“Can you understand,” Kennedy asked, “why some Americans go, ‘Wait a minute. These are unenumerated rights. Are justices interpreting the Constitution or are they just deciding a right when they get five votes and it’s just a moral conviction?’ ” Republican Sen. Ben Sasse also grilled Jackson about substantive due process and the court’s authority “to create new fundamental rights.” He returned to the subject on Wednesday, then expressed disappointment when she declined to disavow the doctrine.
In case it wasn’t clear what these senators were up to, Cornyn made it explicit on Wednesday afternoon. “The Constitution doesn’t mention the word abortion,” he lectured Jackson, “just like it doesn’t mention the word marriage.” These senators appear confident that the Supreme Court will overrule the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization, which should come down by June. They are so confident, in fact, that they prodded Jackson to say whether she would abide by Dobbs once she joins the court, rather than fight to revive Roe. But on the whole, Republicans were noticeably less engaged over abortion than they were about same-sex marriage.
It’s easy to see why. The GOP, alongside the conservative legal movement, has built up a massive infrastructure to fight the culture wars. After Roe, it will need a new target, and marriage equality is the obvious choice. Republicans never really gave up on the issue, but rather staged a tactical retreat after Obergefell, pressing for sweeping exemptions from civil rights laws to legalize discrimination against same-sex couples. But after Justices Brett Kavanaugh and Amy Coney Barrett replaced the gay-friendly Anthony Kennedy and Ruth Bader Ginsburg, this retreat slowed to a crawl, and Republicans sought to regain some ground. They pressed the Supreme Court to roll back protections for same-sex couples (to no avail—yet) and have now launched a campaign to mandate anti-LGBTQ discrimination in schools. A GOP legislator in Texas has asked Attorney General Ken Paxton to declare that the state’s ban on same-sex marriage remains valid and enforceable.
As the architect of Texas’ vigilante abortion ban has candidly acknowledged, overturning Roe will leave Obergefell hanging by a thread. And the unraveling won’t stop there. A number of major decisions protecting reproductive rights, including access to contraception, will be imperiled if the court repudiates substantive due process. So will Loving v. Virginia, the 1967 decision legalizing interracial marriage, which—just like Obergefell—relied on both due process and equal protection. Republican Sen. Mike Braun claims to have misspoken when he said that Loving should be overturned on Tuesday. But he was only following his beliefs to their logical conclusion.
The fact that Republicans don’t talk much about marriage equality these days doesn’t mean they’ve accepted it. The GOP’s 2020 platform called for the government to cease recognizing same-sex unions. Republican legislators around the country are falling over themselves to ban discussion of same-sex marriage in public schools. And now Republican senators have used the Jackson hearings to test the waters with Obergefell, revealing a newly invigorated push for its reversal. And why not? The crusade against Roe seemed hopeless for decades until, suddenly, it didn’t. With six conservative justices installed on the Supreme Court, there’s no limit to Republicans’ anti-gay dreams.
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