After Roe, Obergefell
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Needless to say, very little of value or interest comes out of Supreme Court confirmation hearings, but one notable thing to emerge between the Josh Hawley’s Pizzagate smarm and Ted Cruz’s elementary school textbook smarm was Republican senators still openly saying that Obergefell should be overruled:
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 Most states, he pointed out, had not yet repealed their bans on same-sex marriage when the “edict” came down.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?”
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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.”
And Cornyn and Kennedy are the least crackpot of the Republicans on the Judiciary Committee, granting that the margins get smaller every year. Confident assumptions that public opinion means that the question of same-sex marriage is settled are very, very wrong. This Court doesn’t care, and if Obergefell is overruled there are plenty of completely safe (whether through actual majorities or gerrymandering) Republican legislatures out there.