WASHINGTON — The U.S. Supreme Court’s ruling on same-sex marriage — handed down nearly seven years ago in 2015 — is considered settled law and in the rearview mirror of history for many Americans, but the senator John Cornyn (R-Texas) chose to press Judge Ketanji Brown Jackson on the decision as an example of policymaking from the bench during his first round of questioning during his confirmation hearing.

Jackson, nominated by President Biden to serve on the US Supreme Court, stood firm in answering questions despite Cornyn’s lamentations, the ruling found due process and the right for same-sex couples to marry who overruled the will of people who voted to ban same-sex weddings in his state.

“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.”

In the nearly 15-minute exchange between Cornyn and Jackson, the Texas Republican pressed her on the courts’ expansive interpretation of due process and equal protection clauses, which he says have led to decisions doomed to the dustbin of history like Dred Scott and Plessy vs. .Fergusson.

Cornyn, however, also included in these decisions the 2015 decision in Obergefell v. Hodges, which he said was a “radical departure from previous laws in the states and across the country.” (Cornyn throughout the interrogation had difficulty pronouncing the name “Obergefell”, which he at least once called the case “Ober-fell”.)

“In the notices that were written there at the time, it was noted that we are here 234 years after the ratification of the Constitution, 135 years since the ratification of the 14th Amendment, that the Supreme Court has enunciated a new fundamental right, which is a right to same-sex marriage,” Cornyn said.

Cornyn recalled at the time that 11 states and DC had legalized same-sex marriage, but said 35 states asked the question on the ballot and 32 decided to “maintain the traditional definition of marriage between one man.” and a wife”.

The Texas Republican went on to describe the problem not just as a compelling will of the states and people, but also of major religions, and asked Jackson if she agreed that “marriage is not just an institution governmental, it is also a religious institution”.

When Jackson replied, “Well, Senator, marriages are often performed in religious institutions,” Cornyn went on to ask if she agreed that many major religions, including Christianity, Judaism and Islam, have defined marriage as one man, one woman (ignoring faiths within those religions, such as the Episcopal and Presbyterian Church, which recognize and espouse same-sex couples).

Jackson would not engage with Cornyn beyond what was directly necessary: ​​”I am aware that there are various religious denominations that define marriage in traditional ways.”

It was at this point that Cornyn framed the Obergefell decision as aggravating a conflict between religious views and the court’s decision.

“Do you see that when the Supreme Court rules dramatically on the invalidity of state marriage laws, it will inevitably create a conflict between those who subscribe to the Supreme Court’s edict and those who hold a firmly religious belief rooted that marriage is between a man and a woman?” Cornyn asked.

Jackson, as is customary for a candidate for a Supreme Court seat, declined to comment, pointing out that “these issues are being argued, as you know, in the courts” and therefore she was limited in what she could say. .

But Cornyn didn’t let go, again pressing Jackson on Oberfell’s decision. Jackson responded that the “nature of law” found that the U.S. Constitution trumps regulation “even if people regulate in accordance with their sincere religious beliefs.”

Cornyn continued his questioning by asking if the concept of marriage is enshrined in the Constitution, relying on dissents from Chief Justice John Roberts and Associate Justice Samuel Alito lamenting that opponents of same-sex marriage are branded bigots.

More generally, Cornyn went on to lament basic due process rights found by the courts as “another way for judges to hide their policy-making under the guise of interpreting the Constitution.”

Jackson gave a response demonstrating his knowledge of the case law, saying the courts have found that the right to due process means “not only procedural rights relating to government action, but also the protection of certain personal rights relating to privacy and autonomy.

“They include things like the right to raise one’s children, I believe the right to travel, the right to marry, interracial marriage, the right to abortion, birth control,” Jackson said.

Cornyn appealed to the same interpretation that led to the Dred Scott decision, citing “treating slaves as chattels” as another result of interpreting the due process clause broadly.

After further questioning from Cornyn about whether “you can use substantive due process to justify basically any outcome, be it conservative or liberal, libertarian or conservative,” he went on to ask Jackson if she could understand “why do ordinary people wonder, who do these people do you think they are? And where does that authority come from?” Jackson, in response, kept his answer simple: “Absolutely, senator, I understand.”

It should be noted that the Supreme Court rejected subsequent legal requests to overturn the Obergefell decision, or even to cut corners on the decision. Even with the 6-3 conservative majority on the Supreme Court, justices in 2020 refused to hear a case brought by Indiana seeking to challenge the decision based on the birth certificates of the children of same-sex married women. . Alito, however, and Associate Justice Clarence Thomas have declared war on Obergefell, writing in a filing two years ago that the decision does not respect religious freedom.