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Legal expert accuses GOP senator of citing argument against interracial marriage in Judge Jackson hearing
March 22, 2022 11:59AM ET
Sen. John Cornyn (R-TX) used two main cases from the 1800s to ask about same-sex marriage, which was legalized by the Supreme Court in 2015. But many saw problems with his argument that were characterized as both racist and factually incorrect.
Cornyn, who was once the attorney general of Texas, asked Judge Ketanji Brown Jackson if she would agree that The Dred Scott case and Plessy v. Ferguson "were appropriately overruled by the Supreme Court." Dred Scott was never overturned by the Supreme Court, it was overturned by the 13th Amendment. At the time, March 6, 1857, the Supreme Court ruled that the Constitution didn't give citizenship to those kidnapped in Africa and brought to the United States as slaves.
Addressing the line of questioning, legal analyst Elie Mystal lamented that the argument from Cornyn was making was about "substantive due process," which wasn't even invented during those cases.
He also remarked that the way that Cornyn was discussing marriage and using the argument of "inventing" new rights was the same argument made when racists protested interracial marriage. The idea of religious freedom, he seemed to argue, allows people to block marriages.
What same-sex marriage advocates effectively explained was that because people need a marriage license from the state or municipality, the government can't block those based on religious objections. Churches have the religious freedom to do whatever they want, but the state can't prioritize religion over the rights of individuals.
Cornyn began the conversation by "asking about some decisions that the Supreme Court has made recently" but both Plessy and Scott were from the 1800s.
See the video as well as Mystal's thread and annoyed experts agreeing with him below:
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