Headed into Judge Ketanji Brown Jackson’s confirmation hearings, Republicans had already telegraphed many of the punches they intended to throw at the Supreme Court nominee. With this in mind, it came as something of a surprise when one GOP senator focused his attention on, of all things, marriage equality. NBC News reported:
Sen. John Cornyn, R-Texas, launched into a lengthy set of questions that appeared to be making the case that Obergefell v. Hodges, the case that legalized gay marriage across the country, was faulty. When asked about gay marriage, Jackson told Cornyn she couldn’t comment on the issue of same-sex marriage, since litigation is ongoing.
In fairness, it’s worth emphasizing that the Texas Republican did not explicitly denounce the Supreme Court’s 2015 ruling on marriage equality. That said, Cornyn certainly gave the impression that he took issue with the justices’ decision, and he seemed eager to get Jackson to endorse the idea that Americans should be able to embrace a “traditional marriage ideology” for religious reasons.
“Well, senator, that is the nature of a right,” the nominee responded. “When there is a right, it means that there are limitations on regulation even if means people are regulating pursuant to their sincerely held religious beliefs.”
Cornyn went on to share his “concern” about the Supreme Court having created a “new right” that conflicts with those who hold “traditional” beliefs. Jackson demurred, saying she wasn’t in a position to comment on her personal views.
Let’s pause for a moment to review how we arrived at this point.
When the Supreme Court cleared the way for marriage equality across the country in Obergefell v. Hodges, there was an open secret in Republican circles: The GOP hoped to see a different judicial outcome, but once the matter was resolved, party insiders were relieved that the fight was over.
After all, the issue was a losing proposition for the Republican Party. Polls showed broad support for equal marriage rights, and this was one of the most prominent social/cultural issues in which Democrats had an obvious upper hand. Five justices helped advance civil rights in the United States, and in the process, they also did the GOP a favor by taking the debate off the table.
Or so it seemed at the time.
In the months that followed the Supreme Court’s Obergefell ruling in 2015, Sen. Marco Rubio was one of the most prominent Republicans who not only said he disagreed with the justices’ decision, the Floridian also vowed to look for ways to “change the law” in order to stop same-sex couples from getting married.
The GOP senator ended up with allies on the high court. In October 2020, Justices Samuel Alito and Clarence Thomas complained in a dissent about the “victims” of the court’s marriage equality ruling, and a month later, Alito delivered an usually political speech to the Federalist Society in which he whined about social pressure surrounding anti-LGBTQ+ sentiments.
“You can’t say that marriage is a union between one man and one woman” anymore, the conservative justice whined, as if he were a candidate seeking social conservatives’ votes. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
To be sure, Cornyn didn’t go quite this far, but his line of questioning nevertheless suggested that in some conservative circles, the debate over marriage equality is ongoing.
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