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Jackson holds firm in questioning over marriage equality

Texas Republican compares decision to Dred Scott

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3 years ago

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From left, Judge Ketanji Brown Jackson and Sen. John Cornyn (R-Texas) at the United States Senate Committee on the Judiciary on March 22, 2022. (Washington Blade photos by Michael Key)

The U.S. Supreme Court ruling for same-sex marriage — issued nearly seven years ago in 2015 — is considered settled law and in the rear-view mirror of history for many Americans, but Sen. John Cornyn (R-Texas) opted to press Ketanji Brown Jackson on the decision as an example of policy-making from the bench in questions during her confirmation hearing.

Jackson, nominated by President Biden to serve on the U.S. Supreme Court, stood firm on Tuesday in response to the questions despite lamentations from Cornyn the decision found a due process and right for same-sex couples to marry that overruled the will of the people who voted to ban gay nuptials in his state.

“That is the nature of a right,” Jackson replied. “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.”

In the nearly 15-minute exchange between Cornyn and Jackson, the Texas Republican pressed her on the expansive interpretation by the courts of due process and equal protection clauses, which he said led to decisions condemned to the dustbin of history like Dred Scott and Plessy v. Ferguson.

Cornyn, however, also included with those rulings the 2015 decision in Obergefell v. Hodges, which he said was a “dramatic departure from previous laws in the states and in the nation.” (Cornyn throughout the questioning had difficulty pronouncing the name “Obergefell,” which at least one time he called the “Ober-fell” case.)

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

Cornyn recalled at the time 11 states and D.C. had legalized same-sex marriage, but said 35 states had put the question on the ballot and 32 had decided to “maintain the traditional definition of marriage between a man and a woman.”

The Texas Republican went on to describe the issue as not just an overriding the will of the states and the people, but also major religions, and asked Jackson if she agrees “marriage is not simply a governmental institution, it’s also a religious institution.”

When Jackson replied, “Well, senator, marriages are often performed in religious institutions,” Cornyn followed up with questioning on whether she agrees many major religions, including Christianity, Judaism, and Islam, have defined marriage as one man, one woman (ignoring denominations within those religions, such as Episcopal and Presbyterian Church, that recognize and wed same-sex couples).

Jackson wouldn’t engage with Cornyn beyond what was directly necessary: “I am aware that there are various religious faiths that define marriage in a traditional way.”

That’s when Cornyn framed the Obergefell decision as stepping up a conflict between religious views and the decision of the court.

“Do you see that when the Supreme Court makes a dramatic pronouncement about the invalidity of state marriage laws, that it will inevitably set in conflict between those who ascribe to the Supreme Court’s edict and those who have a firmly held religious belief that marriage is between a man and a woman?” Cornyn asked.

Jackson, as is customary for a nominee up for a seat on the Supreme Court, declined to offer her views, pointing out “these issues are being litigated, as you know, throughout the courts” and therefore she was limited in what she could say.

But Cornyn wouldn’t up let up, pressing Jackson again on the Obergefell ruling. Jackson responded the “nature of the right” found the U.S. Constitution trumps regulation “even if people are regulating pursuant to their sincerely held religious beliefs.”

Cornyn continued his questioning by asking whether the concept of marriage is enshrined in the Constitution, drawing on the dissents from Chief Justice John Roberts and Associate Justice Samuel Alito lamenting opponents of same-sex marriage will be labeled as bigots.

More broadly, Cornyn went on to lament the substantive due process rights found by the courts as “another way for judges to hide their policymaking under the guise of interpreting the Constitution.”

Jackson gave an answer demonstrating her knowledge of case law, saying courts have found the right to due process to mean “not just procedural rights relative to government action but also the protection of certain personal rights related to intimacy and autonomy.”

“They include things like the right to rear one’s children, I believe the right to travel, the right to marriage, interracial marriage, the right to abortion, contraception,” Jackson said.

Cornyn interjected the same interpretation led to the Dred Scott decision, citing “treating slaves as chattel property” as an another outcome of the expansive intrepretation of the due process clause.

After more questioning from Cornyn on whether “you can use substantive due process to justify basically any result whether it’s conservative or liberal, libertarian or conservative,” he went on to ask Jackson whether she can understand “why ordinary folks wonder, Who do these people think they are? And where does this authority come from?” Jackson, in response, kept her answer simple: “Absolutely, senator, I do understand it.”

It should be noted the Supreme Court has rejected subsequent legal claims to overturn the Obergefell decision, or even to chip away at the decision. Even with the 6-3 conservative majority on the Supreme Court, justices in 2020 declined to hear a case brought by Indiana seeking to challenge the decision on the basis of birth certificates for the children for women in same-sex marriages. Alito, however, and Associate Justice Clarance Thomas have declared war on Obergefell, writing in a filing two years ago the ruling falls short in accommodating religious freedom.

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Congress

Senate parliamentarian orders removal of gender-affirming care ban from GOP reconciliation bill

GOP Senate Leader John Thune (S.D.) hoped to pass the bill by end-of-week

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5 days ago

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June 26, 2025

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(Washington Blade photo by Michael Key)

Restrictions on the use of federal funds for gender-affirming care will be stripped from the Republican-led Senate reconciliation bill, following a ruling by the Senate parliamentarian on Tuesday that struck down a number of health related provisions.

The legislation banned coverage for transgender medical care through Medicaid and the Children’s Health Insurance Program, language that was also included in the House version of the bill passed on May 22 with a vote of 215-214.

The parliamentarian’s decision also rejected Republican proposals for a Medicaid provider tax framework, which allows states to charge health care providers and use the funds to support their programs, along with broader cuts to Medicaid.

Amid calls to override Tuesday’s ruling from Republicans like U.S. Rep. Greg Steube (Fla.), GOP Senate Majority Leader John Thune (S.D.) told reporters “That would not be a good outcome for getting a bill done.”

He also acknowledged that the timing and schedule might have to be adjusted. Senate Republicans had hoped to pass the reconciliation bill by the end of this week, though this was not a legal or procedural deadline.

Dubbed the “one big, beautiful bill” by President Donald Trump, the legislation would extend tax breaks from 2017 that overwhelmingly benefit the wealthiest Americans and corporations. To cover the cost, which is estimated to exceed $4 trillion over 10 years, the bill would make drastic cuts to social welfare programs, particularly Medicaid.

Democrats are not in a position to negotiate across the aisle with Republicans holding majorities in both chambers of Congress, but for months they have been calling attention to the effort by their GOP colleagues to strip Americans of their health insurance to pay for the tax breaks.

The Congressional Budget Office estimates that 10.9 million people would lose their coverage, either through Medicaid or the Affordable Care Act marketplaces. Some Republicans like U.S. Sen. Josh Hawley (Mo.) are pushing back against the deep cuts to Medicaid, arguing they would be devastating for many of their constituents and also to hospitals, nursing homes, and community health care providers in rural areas.

In a statement emailed to the Washington Blade on Tuesday, U.S. Senate Democratic Whip Dick Durbin (Ill.) said, “Anti-trans extremists are attempting to use the full power of the government to hurt kids, and recent Supreme Court decisions in Skrmetti and Medina are enabling their quest.”

While today’s ruling by the Senate parliamentarian is a temporary win, I will keep pushing back on these shameful attempts to harm trans kids and their families for trying to live authentically,” said the senator, who also serves as ranking member of the powerful Senate Judiciary Committee.

U.S. Rep. Mark Takano (D-Calif.), who is gay and chairs the Congressional Equality Caucus, also shared a statement with the Washington Blade addressing the parliamentarian’s ruling:

“This ruling by the Senate Parliamentarian is a win for the transgender people who rely on Medicaid and CHIP to access the healthcare they need to live fuller, happier, and healthier lives—but the fight is not over yet,” the congressman said.

 “Republican Senators must abide by her ruling and remove the ban from the final version of Trump’s Big Ugly Bill,” he said. “Yet, even with this provision removed, this bill is terrible for the American people, including trans Americans. Every Equality Caucus member voted against it in the House and we’re ready to do so again if the Senate sends it back to the House.”

The Human Rights Campaign issued a press release with a statement from the organization’s vice president for government affairs, David Stacy:

“The fact remains that this bill belongs in the trash. It continues to include devastating cuts to health care programs — including Medicaid — that would disproportionately harm the LGBTQ+ community, all so the already rich can receive huge tax cuts,” Stacy said.

“While it comes as a relief that the Senate parliamentarian concluded that one provision in the nightmarish reconciliation bill that would have denied essential, best practice health care to transgender adults does not belong, we aren’t done fighting,” he said. “With attacks on our community coming from many directions, including the Supreme Court, we will work to defeat this bill with everything we’ve got.”


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Congress

Murkowski, Shaheen reintroduce Global Respect Act

Bill would sanction foreign nationals who commit anti-LGBTQ human rights abuses

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5 days ago

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June 26, 2025

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Then-U.S. Ambassador to Hungary David Pressman marches in the 2024 Budapest Pride parade that took place against the backdrop of the Hungarian government's continued anti-LGBTQ crackdown. The Global Respect Act would sanction foreign nationals who carry out human rights abuses against LGBTQ and intersex people. (Photo courtesy of Pressman's X account)

U.S. Sens. Lisa Murkowski (R-Alaska) and Jeanne Shaheen (D-N.H.) on Wednesday once again introduced a bill that would sanction foreign nationals who carry out human rights abuses against LGBTQ and intersex people.

The two senators have previously introduced the Global Respect Act. Co-sponsors include U.S. Sens. Chris Van Hollen (D-Md.), Chris Murphy (D-Conn.), Jeff Merkley (D-Ore.), Cory Booker (D-N.J.), Peter Welch (D-Vt.), Brian Schatz (D-Hawaii), Edward Markey (D-Mass.), Tammy Baldwin (D-Wis.), and Ron Wyden (D-Ore.)

“Around the world, individuals who are part of the LGBTQ+ community are in danger for simply existing,” said Murkowski in a press release. “Hate and violence cannot and should not be tolerated. I’m hopeful that this legislation will establish actionable consequences for these inexcusable human rights violations, and create a safer world for all people — regardless of who they are or who they love.” 

Shaheen in the press release notes “the risk of personal harm for LGBTQI individuals for publicly identifying who they are or expressing who they love has tragically increased in recent years.”

“Human rights, as defined by the Universal Declaration of Human rights, recognizes that global freedom, justice, and peace depend on ‘the inherent dignity’ and ‘the equal and inalienable rights of all members of the human family,” said the New Hampshire Democrat. “LBGTQI human rights are universal human rights. We must ensure that we hold all violators of those rights accountable.” 

The promotion of LGBTQ and intersex rights abroad was a cornerstone of the Biden-Harris administration’s foreign policy.

The current White House has suspended most foreign aid. The elimination of these funds has left the global LGBTQ and intersex rights movement reeling.

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Congress

Garcia elected top Democrat on the House Oversight Committee

Gay Calif. lawmaker vows to hold Trump-Vance administration accountable

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1 week ago

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June 24, 2025

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U.S. Rep. Robert Garcia (D-Calif.) (Washington Blade photo by Michael Key)

U.S. Rep. Robert Garcia (D-Calif.) on Tuesday was elected top Democrat on the House Oversight Committee in a vote that signaled the conference’s overwhelming support for a newer voice on Capitol Hill who will play a key role taking on President Donald Trump.

With a margin of 150-63, the 47-year-old openly gay congressman defeated U.S. Rep. Stephen Lynch (D-Mass.), alongside U.S. Reps. Jasmine Crockett (D-Texas) and Kweisi Mfume (D-Md.) who exited the race after the House Democratic Steering and Policy Committee backed Garcia.

Serving only since 2023, the congressman has had a remarkably quick ascent leading up to his election this week as ranking member of one of the most powerful House committees, awarded a leadership position serving under House Democratic Whip Katherine Clark (Mass.) and selected as a co-chair of former Vice President Kamala Harris’s 2024 presidential campaign.

Democratic members began jockeying for the top seat on the oversight committee this spring after the late-U.S. Rep. Gerry Connolly of Virginia stepped away amid news that his esophageal cancer had returned. He died in May.

Connolly last year fended off a challenge from one of the most well known House Democrats, U.S. Rep. Alexandria Ocasio-Cortez (N.Y.), though with a narrower margin that signaled intra-party tensions over whether leadership roles should still be awarded based on seniority.

Garcia positioned himself as a bridge between the two camps — a consensus candidate with executive managerial experience as the former mayor of Long Beach, Calif. At the same time, particularly since the start of Trump’s second term, the congressman has emerged as one of the most outspoken critics of the new Republican regime.

In a statement on X Tuesday, Garcia thanked his colleagues and promised to “hold Donald Trump and his administration accountable.”

If Democrats win control of the House next year, the oversight committee will be able to exercise powers that are now available only to Republicans under the chair, U.S. Rep. James Comer (R-Ky.), which include the authority to investigate virtually any matter across the federal government, to issue subpoenas, and to compel testimony.

In the meantime, Garcia on Monday promised that Democrats on the committee would “vigorously fight” Republican Speaker Mike Johnson’s (La.) plans “to dismantle the Government Accountability Office.”

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