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Jackson holds firm in questioning over marriage equality

Texas Republican compares decision to Dred Scott

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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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Politics

Pro-trans candidates triumph despite millions in transphobic ads

Election results a potential blueprint for 2026 campaigns

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Virginia Gov.-elect Abigail Spanberger campaigns ahead of Election Day. (Photo courtesy of Spanberger's campaign)

Activists and political observers say the major Democratic victories on the East Coast last week prove anti-transgender attacks are no longer effective.

Democrats in Virginia, New Jersey, and New York who defended transgender rights directly — Abigail Spanberger, Mikie Sherrill, and Zohran Mamdani — won decisively, while Republicans who invested millions in anti-trans fearmongering were rejected by voters.

This contrasts sharply with the messaging coming out of the White House.

The Trump-Vance administration has pursued a hardline anti-trans agenda since taking office, from attempting to ban trans military members from serving to enforcing bathroom and sports bans. But this winning strategy may not be as solid for their voters as it once seemed.

The Washington Blade attended a post-election meeting hosted by the Human Rights Campaign, where LGBTQ advocates and political leaders reflected on the results and discussed how to build on the momentum heading into 2026 — as the Trump-Vance administration doubles down on its anti-trans agenda.

Among those on the call was U.S. Rep. Sarah McBride (D-Del.), the first openly trans person ever elected to Congress. Having run one of the nation’s most visible pro-trans campaigns, McBride said voters made their priorities clear.

“Voters made clear yesterday that they will reject campaigns built on hatred. They will reject campaigns that seek to divide us, and they will reject candidates that offer no solutions for the cost-of-living crisis this country is facing.”

McBride cited the Virginia governor’s race as a clear example of how a candidate can uplift trans people — specifically when their opponent is targeting kids — but also refocus the conversation on topics Americans truly care about: the economy, tariffs, mortgage rates, and the preservation of democracy.

“We saw millions of dollars in anti-trans attacks in Virginia, but we saw Governor-elect Spanberger respond. She defended her trans constituents, met voters with respect and grace, and ran a campaign that opened hearts and changed minds,” McBride said.

“That is the future of our politics. That is how we win — by combating misinformation, caricatures, fearmongering, and scapegoating.”

She added that the elections in Virginia, New Jersey, and New York offer a “blueprint” for how Democrats can effectively respond to GOP attacks and win “in the face of hatred.”

“When you dive into the data and you look in New Jersey, Virginia — you see the progress that pro-equality candidates have made in urban, suburban, and rural communities, among voters of every background and identity,” McBride said. “You see that we can compete everywhere … When we perform a politics that’s rooted in three concepts, we win.

“One is a politics of affordability — we prioritize the issues keeping voters up at night, the cost-of-living crisis. Two, we are curious, not judgmental — as candidates, we meet people where they are, hold true to our values, but extend grace so people can grow. And three, we root our politics in a sense of place.”

“All of these candidates were deeply committed to their districts, to their state, to their city,” she continued. “Voters responded because they were able to see a politics that transcended partisanship and ideology … about building community with one another, across our disagreements and our differences. When we as pro-equality candidates embody that type of politics — a politics of affordability, curiosity, and community — we win.”

Human Rights Campaign President Kelley Robinson echoed McBride’s sentiment — once again moving away from the bogeyman Republicans have made trans children out to be and refocusing on politics that matter to people’s everyday lives.

“Anti-trans extremists poured millions into fearmongering, hoping cruelty could substitute for leadership — and once again, it failed,” Robinson said. “Fear can’t fill a prescription. Division doesn’t lower rent or put food on the table. Voters saw through the distraction.”

Robinson then detailed how much money Virginia Lt. Gov. Winsome Earle-Sears, the Republican who challenged Spanberger, spent on these ads — showing that even with money and a PAC standing behind her (like the Republican Governors Association’s Right Direction PAC, which gave her $9.5 million), success isn’t possible without a message that connects with constituents.

“In Virginia, Abigail Spanberger made history defeating Winsome Earle-Sears and more than $9 million of anti-trans attack ads. She didn’t flinch. She didn’t hide from her values. She led with them — and Virginians rewarded that courage.”

Equality Virginia Executive Director Narissa Rahaman went into further detail on how the Republican nominee for Virginia’s governor leaned into transphobia.

“Winsome Earle-Sears spent more than 60 percent of her paid media budget attacking transgender kids — an unprecedented amount — and it failed.”

Rahaman continued, saying the results send a message to the whole country, noting that only 3 percent of voters ranked trans issues as a top concern by the end of October.

“Virginia voters sent a resounding message that anti-trans fearmongering is not a winning strategy — not here in Virginia, and not anywhere else,” Rahaman said. “Candidates who met these attacks head-on with messages rooted in freedom, safety, and fairness saw overwhelming success. Attacking transgender youth is not a path to power. It is a moral dead end — and a political one too.”

Virginia state Del. Joshua Cole (D-Fredericksburg), who was also on the call, put it bluntly:

“Republicans have now become champions of campaigning on bullying kids — and we saw last night that that was a losing tactic.”

“Virginians came out en masse to say we believe in protecting our neighbors, protecting our friends — and standing up for everybody.”

That message rang true well beyond Virginia.

In New Jersey, Rep. Mikie Sherrill pushed back against GOP efforts to weaponize trans issues, telling voters, “When you really talk to people, they have empathy. They understand these are kids, these are families, and they deserve our support.”

And in New York, state Assemblymember Zohran Mamdani released a pre-election ad honoring trans liberation icon Sylvia Rivera, declaring, “New York will not sit idly by while trans people are attacked.”

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Politics

Former VP Dick Cheney dies at 84

Supported marriage equality before it was legalized

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Cheney, gay news, Washington Blade
Dick Cheney died at age 84. (Public domain photo)

Former Vice President Dick Cheney died of complications from pneumonia and cardio and vascular disease, according to a family statement released Tuesday morning. He was 84. 

Cheney served as vice president under President George W. Bush for eight years and previously as defense secretary under President George H.W. Bush. He also served as a House member from Wyoming and as White House chief of staff for President Gerald Ford. 

“Dick Cheney was a great and good man who taught his children and grandchildren to love our country, and to live lives of courage, honor, love, kindness, and fly fishing,” his family said in a statement. “We are grateful beyond measure for all Dick Cheney did for our country. And we are blessed beyond measure to have loved and been loved by this noble giant of a man.”

Cheney had a complicated history on LGBTQ issues; he and wife Lynne had two daughters, Liz Cheney and Mary Cheney, who’s a lesbian. Mary Cheney was criticized by LGBTQ advocates for not joining the fight against President George W. Bush’s push for a constitutional amendment banning gay marriage. She later resumed support for LGBTQ issues in 2009, including same-sex marriage, after her father left office in 2009. She married her partner since 1992, Heather Poe, in 2012.

In 2010, after leaving office, Cheney predicted “Don’t Ask, Don’t Tell” would “be changed” and expressed support for reconsideration of the law banning open military service.

In 2013, the Cheney family’s disagreements over marriage equality spilled into the public eye after Liz Cheney announced her opposition to same-sex couples legally marrying. Mary Cheney took to Facebook to rebuke her sister: “Liz – this isn’t just an issue on which we disagree – you’re just wrong – and on the wrong side of history.” Dick and Lynne Cheney were supporters of marriage equality by 2013. Liz Cheney eventually came around years later.

Cheney, a neo-con, was often criticized for his handling of the Iraq war. He was considered one of the most powerful and domineering vice presidents of the modern era. He disappeared from public life for years but re-emerged to help Liz Cheney in her House re-election bid after she clashed with President Trump. Dick Cheney assailed Trump in a campaign video and later Liz announced that her father would vote for Kamala Harris in the 2024 presidential election.

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New Hampshire

John E. Sununu to run for NH Senate seat

Gay Congressman Chris Pappas among other candidates

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Former U.S. Sen. John E. Sununu (R-N.H.) (Screen capture via WMUR-TV/YouTube)

Former U.S. Sen. John E. Sununu on Wednesday announced he is running for retiring U.S. Sen. Jeanne Shaheen (D-N.H.)’s seat in 2026.

“Washington, as anyone who observes can see, is a little dysfunctional right now,” Sununu told WMUR in an interview the New Hampshire television station aired on Wednesday. “There’s yelling, there’s inactivity. We’ve got a government shutdown. Friends, family, they always say, ‘Why would anyone want to work there?’ And the short answer is it’s important to New Hampshire. It’s important that we have someone who knows how to get things done.”

Sununu, 61, was in the U.S. House of Representatives from 1997-2003 and in the U.S. Senate from 2003-2009. Shaheen in 2008 defeated Sununu when he ran for re-election.

Sununu’s father is John Sununu, who was former President George H.W. Bush’s chief of staff. Sununu’s brother is former New Hampshire Gov. Chris Sununu.

John E. Sununu will square off against former U.S. Sen. Scott Brown in the Republican primary. Gay U.S. Rep. Chris Pappas (D-N.H.) is among the Democrats running for Shaheen’s seat.

“As a small business owner and public servant, I’m in this fight to put people first and do what’s right for New Hampshire,” said Pappas on Wednesday on X. “I’m working to lower costs and build a fair economy. Washington should work for you — not corporate interests.”

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