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Republican questions on same-sex marriage raise concerns of future debate to overturn

AYESHA RASCOE, HOST:

And now to a different Supreme Court question. During Judge Ketanji Brown Jackson's confirmation hearing last week, she was asked by Republican senators about critical race theory, how to define the word woman, and about same-sex marriage. In 2015, the high court declared same-sex marriage legal in this country. The landmark cases known as Obergefell v. Hodges was decided by a 5-4 court ruling. And last week, Senator John Cornyn was one of the Republicans who asked Judge Jackson about it.

(SOUNDBITE OF CONFIRMATION HEARING)

JOHN CORNYN: Doesn't that necessarily create a conflict between what people may believe as a matter of their religious doctrine or faith and what the federal government says is the law of the land?

RASCOE: Could Obergefell face a fight like the one we've seen with Roe v. Wade? Joining us now to talk about it is Melissa Murray, an NYU law professor and co-host of the "Strict Scrutiny" podcast about the Supreme Court. Thanks for being with us.

MELISSA MURRAY: Thank you for having me, Ayesha.

RASCOE: I wonder if we could just start with you characterizing what Republican senators had to say about Obergefell during these hearings.

MURRAY: Well, the Republicans were at great pains to emphasize that Obergefell v. Hodges, which focuses on the right to marry and specifically the right to marry a person of the same sex, as being unrooted in constitutional text. As they made clear, the right to marry is nowhere. But it has been recognized by the courts as one of the, quote, unquote, "basic civil rights of man" since as early as the 1940s. And so in 2015, when the court took up Obergefell v. Hodges, they merely extended that logic and noted that the institution of marriage had changed, and it was elastic enough to include the prospect of individuals marrying those of the same sex. But when we heard Senator Cornyn, for example, taking up the question in Judge Jackson's confirmations, it was to underscore that this was a, quote, unquote, "unenumerated right" and that these unenumerated rights might not enjoy the same kind of constitutional protection and fidelity as those so-called text-based rights like the Second Amendment, like religious liberty.

RASCOE: The Supreme Court decision on same-sex marriage was made almost seven years ago, and it had seemed like there hadn't really been a lot of serious discussion about it from Republican lawmakers about trying to overturn it. So, like, how should we take these comments? Like, is there going to be more of a fight over this issue again?

MURRAY: I think we have to understand this trajectory in the context of abortion. The right to terminate a pregnancy precedes, like the right to marry, from this understanding of personal privacy that has been inferred from the Constitution's guarantee of liberty. And Republicans have argued that the right to an abortion, because it is not tethered to Constitutional text, isn't a Constitutionally legitimate right. We are now on the precipice of the Supreme Court overruling Roe v. Wade. And so I think what we are now seeing is the beginning of a new fight and a new battle, and the battle is going to be over these other rights that also precede from that underlying core of privacy in intimate lives.

RASCOE: But, I mean, is there any evidence outside of the Supreme Court nomination hearing that there has been movement on this?

MURRAY: This is not a question of could. I think it is very much an issue of will. There is currently, in Texas, an attorney general directive that would prohibit parents from providing their children with gender-affirming therapies on the ground that this kind of imposition on parental rights is acceptable. And indeed, we heard during the confirmation process that parental rights are nowhere explicit in the text of the Constitution - an unenumerated right that did not deserve fidelity. We've also had three of the attorney general candidates in Michigan say that there is no constitutional right to use contraception despite the Supreme Court's 1965 ruling that there is exactly that sort of right preceding from this understanding of personal privacy that is implicit in the Constitution's guarantee of liberty. So I think we are seeing the signs. Like, this is not a hypothetical battle.

RASCOE: This may take some people as surprise, what you're saying, because support for same-sex marriage in the U.S. is - it's higher now than it was in 2015 when the Supreme Court decision was made. A Gallup poll last year put it at 70%, I mean, and 55% among Republicans. I think some people might think that wouldn't a legal strategy to overturn a decision that has such popular support backfire?

MURRAY: I understand why this might sound hyperbolic, especially in light of the strong support for same-sex marriage that exists in this country. But there is also strong support for abortion rights. I think what we are seeing here is the possibility that it will not necessarily be just a straight overruling of Obergefell, and certainly not in a short period of time, but rather we will see the acceleration of perhaps religious objections to same-sex marriage that narrow the ability of same-sex couples to either conduct a marriage in the public sphere or to live their lives as a couple in the public sphere. I think we have to think about this not as a binary like an on and off switch, but that this is a long process, but that it is a process that is very, very possible to happen in these very incremental steps.

RASCOE: Melissa Murray, law professor at NYU, thank you so much.

MURRAY: Thank you, Ayesha.

(SOUNDBITE OF TORO Y MOI'S "DIVINA") Transcript provided by NPR, Copyright NPR.