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Jackson holds firm in questioning over marriage equality

Texas Republican compares decision to Dred Scott



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 β€” issued nearly seven years ago in 2015 β€” 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.

β€œThat is the nature of a right,” Jackson replied. β€œWhen 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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Rep. Sean Patrick Maloney introduces bill to make monkeypox testing free

Health insurers would be required to cover costs



Rep. Sean Patrick Maloney has introduced legislation to make monkeypox testing free to the public. (Blade file photo by Michael Key)

Rep. Sean Patrick Maloney (D-N.Y.), amid the ongoing monkeypox affecting gay and bisexual men, has introduced legislation in the U.S. House seeking to make testing for disease free to the public.

Maloney, one of seven openly gay members of Congress and chair of the Democratic Congressional Campaign Committee, said in a statement the measure, called the No Cost for Monkeypox Testing Act, would testing amid the monkeypox outbreak would be accessible to all.

β€œIt is critical that we eliminate cost as a barrier to testing for monkeypox to ensure we can identify cases and prevent further spread,” Maloney said. β€œThis legislation takes the lessons we learned from past public health emergencies and protects those at risk of contracting monkeypox by making tests accessible to everyone.”

The legislation would require private health insurers as well as Medicare and Medicaid to cover the costs of monkeypox testing at no expense to the patients, either through deductibles, co-payments, and co-insurance.

The bill introduction comes the week after the Biden administration declared the monkeypox outbreak a public health emergency and the same it has issued new guidance to enhance to the accessing of existing vaccines doses amid criticism federal officials were too slow in distributing shots.

The Washington Blade has placed a request in with the Centers for Disease Control seeking comment on the legislation. Secretary of Health & Human Services Xavier Becerra said Tuesday the federal government has the capacity to conduct an estimated 80,000 tests each week.

Maloney has been representing New York’s 18th congressional district, but after redistricting is now seeking re-election in the 17th district. Amid controversy over a potential showdown between Maloney and Rep. Mondaire Jones (D-N.Y.), who’s Black, another openly gay member of Congress and the current representative of that district, Jones has since opted to run for re-election in the New York’s 10th congressional district. Maloney is now running unopposed in the 17th.

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Out Vermont state senator wins Democratic primary race

Tuesday’s victory makes her likely to become the first woman and openly LGBTQ+ person to represent the heavily Democratic state in Congress



Screenshot via Becca Balint for Congress

The Green Mountain State’s state Senate president pro tempore has won the Democratic nomination for the state’s at-large congressional seat, the state’s lone seat in the U.S. House of Representatives.

Becca Balin is running to succeed U.S. Rep. Peter Welch and Tuesday’s victory makes her likely to become the first woman and openly LGBTQ+ person to represent the heavily Democratic state in Congress if elected in November. Vermont is the only state that has never had a female member of its congressional delegation.

The VTDigger, a statewide news website, reported; β€œBalint, 53, is the first openly gay woman elected to the Vermont Senate and the first woman to serve as its president. The former middle school teacher and stay-at-home mother won her first political contest in a race for her southeastern Vermont Senate seat in 2014

She rose quickly through the ranks of the Democrat-controlled chamber, becoming majority leader in 2017, at the start of her second term. Four years later, in 2021,Β she was elected pro temΒ β€” the top position in the Senate.”

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Lindsey Graham: Same-sex marriage should be left to the states

Republican senator says issue a distraction from inflation



Sen. Lindsey Graham said he still thinks the issue of same-sex marriage should be left to the states. (Blade file photo by Michael Key)

Sen. Lindsey Graham (R-S.C.), seven years after the U.S. Supreme Court ruled in favor of same-sex marriage nationwide, said Sunday he still thinks the issue of gay nuptials should be left to the states.

Graham made the remarks during an interview with CNN’s Dana Bash in a rare televised bipartisan debate with Sen. Richard Blumenthal (D-Conn.) as the Senate was in the middle of voting on amendments for the Inflation Reduction Act.

When discussing the 6-3 conservative majority of the Supreme Court, Graham said consistent with the recent decision overturning Roe v. Wade justices could overturn other precedents, such as the 2015 decision in Obergefell v. Hodges in favor of same-sex marriage.

Asked point blank if he was saying it should be overturned, Graham said β€œno, I’m saying that I don’t think it’s going to be overturned.” Graham, however, had an infection his voice, suggesting same-sex marriage could be undone.

β€œNor should it be?” asked Bash.

β€œWell, that would be up to the court,” he responded, then added: β€œI think states should decide the issue of marriage, and states should be decide the issue of abortion.”

When Bash brought up another case, Loving v. Virginia, the 1965 case that overturned states bans on interracial marriage, and asked if that should be revisited as well, Graham replied, “no.”

Graham quickly moved on to tamp down any expectation the would address the issue of same-sex marriage, saying fears the court would revisit the issue are unfounded and meant as a distraction from issues such as inflation.

“But if you’re going to ask me to have the federal government take over defining marriage, I’m going to say no,” Graham added.

Graham’s remarks are consistent with what he told the Washington Blade in 2015 when asked about same-sex marriage as the issue was being adjudicated by the Supreme Court. However, they contrast to his support for a Federal Marriage Amendment that was pending before Congress during the Bush administration and would have made a ban on same-sex marriage nationwide part of the U.S. Constitution. Graham was not asked about his views on now defunct idea of an amendment during the CNN interview.

h/t The Independent

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