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:
WATCH: Cornyn questions Jackson on marriage equality and freedom of religionwww.youtube.com
Cornyn asking if it was correctly decided to overrule Dred Scott and Plessy.\n\nDred Scott wasn't overruled by the Court. It was overruled by the 13th Amendment. \n\nNERD FAIL 2 SENATOR— Elie Mystal (@Elie Mystal) 1647964364
Cornyn pissed that the Supreme Court "invented" a new right of same sex marriage under substantive due process. \n\nTo be clear: Kennedy used SDP... or something\nLiberals woulda gotten that done under Equal Protection logic. \n\nI explain this distinction in my book. :)— Elie Mystal (@Elie Mystal) 1647964835
Cornyn: Marriage is not mentioned in the Constitution\nJackson: It is not\nCornyn: And freedom of religion is\nJackson: It is. \n\n... His point seems to be that religious people have the right to deny the CONTRACTUAL right to marry and... that's just wrong.— Elie Mystal (@Elie Mystal) 1647965025
The argument that Cornyn is making here is THE SAME ONE conservatives used to make against interracial marriage. It's copy pasta from those days. People like Cornyn didn't like it then and don't like it now.— Elie Mystal (@Elie Mystal) 1647965279
Senator Cornyn is a real piece of work.\nWhat is his obsession with Plessy v. Ferguson and Dred Scott? They have been overturned by Brown vs. BOE 1954. And these Senators need to let her answer the questions. They keep interrupting her.— Sophia A. Nelson (@Sophia A. Nelson) 1647965993
" Let me talk to you about some decisions that the supreme court has made recently... starting with Dred Scott Case."- Sen. Cornyn . Friend that case is not recent that was in 1857. #SCOTUS #SCOTUSConfirmation— La Dame Blanche, M.Ed. (@La Dame Blanche, M.Ed.) 1647964780
Cornyn is referring to Obergefell as an \u201cedict.\u201d— Chris Geidner (@Chris Geidner) 1647964979
Cornyn is a step away from waving an "Impeach Earl Warren!" sign.— Chris Geidner (@Chris Geidner) 1647965706
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Lindsey Graham storms out of Supreme Court hearing after meltdown on chairman Durbinwww.youtube.com
