Concerns among some legal civil rights activists, that were raised by the June 28, 2022 Dobbs v Jackson Women's Health Org. Opinion, were exacerbated by the line of questioning of Judge Ketanji Brown Jackson during her Senate Judiciary Committee hearings on her confirmation to be a US Supreme Court Justice.
These concerns arise not only because the Dobbs opinion overturns a 50-year-old precedent of established law. These concerns are also driven by the line of questioning put forth to Judge Ketanji Brown Jackson, and statements made by US Senators during, and subsequent to, her confirmation hearings in March 2022 during the Senate Judiciary Committee hearings.
During the confirmation hearings, some Senators stated it was their opinion certain issues previously decided by the US Supreme Court could also be overturned and such legal issues be returned to the states for the individual states to decide them on a state-by-state basis. What concerns civil rights advocates with this line of thinking is, if this were to happen, two persons who are similarly situated but reside in different states with different laws, could have fundamentally, wholly, and drastically different legal rights of personal autonomy, freedom, and rights to privacy depending on the laws where they reside, although all reside in the same country.
Many civil rights workers and employee rights advocates are uneasy that the Dobbs decision could be a harbinger of things to come.
By way of example, during the confirmation hearings, one senator said he thought the issue of same-sex marriage should be returned to the individual states for the them to rule upon. His stated belief in his support for this is that, “marriage” is not a right enumerated in the U.S. Constitution.
It’s true that Constitution itself does not mention the right to marriage as an enumerated right. Yet most rights which persons are legally deemed to possess under law, are not rights specifically enumerated in the U.S. Constitution.
During the Judge Ketanji Brown Jackson confirmation hearings, questions posed to her included her opinions on whether she agreed with the Court in its various decisions and whether she would have voted with the majority in those decisions had she been on the court at that time.
Questions posed to her by one senator, were questions embodying his beliefs that other issues the Court decided, should not have been decided by the Court and ultimately should be returned to the states. The questions asked of Judge Ketanji Brown Jackson brought up the possibility that other rights, such as the right to gay marriage as established by the US supreme Court in Obergefell v. Hodges, 576 U.S. 644 (2015), never should have been decided by the Court and should be returned to the individual states to decide, and not the US Supreme Court.
Persons who listened to the Judge Ketanji Brown Jackson Senate Judiciary Committee confirmation hearings in March of 2022 will have heard the following questions made by a Senator to Judge Ketanji Brown Jackson (“KGB”):
Senator: “You agree that many of the religions ...they embrace a traditional definition of marriage, correct?”
KGB: “I am aware that there are various religious faiths that define marriage in a various religious faiths that define marriage in a traditional way.”
Senator: “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 belief that edict and those who have a firmly-held belief that marriage is between a man and a woman?..... I’m asking isn’t it apparent when the Supreme Court decides that something that even isn’t in the constitution is a fundamental right and no state can any pass a law that conflicts with the supreme court’s edict, particularly in an area where they have sincerely held religious beliefs, doesn’t that necessarily create a conflict between what people may believe is a matter of their religious doctrine or faith and what the federal government says is the law of the land?”
KGB: “Well, Senator that is the nature of a right that, when there is a right, it means that there are limitations on regulation, even if people are regulating pursuit to their sincerely held religious beliefs.”
Senator: “Marriage is not mentioned in the constitution, is it?”
KJB: “It is not mentioned directly, no.”
Senator: “And religious freedom is mentioned in the First Amendment explicitly, correct?”
KJB: “It is.”
Senator: “Do you share my concern that when the court takes on the role of identifying an an unenumerated right... in other words, it is not mentioned in the constitution, and creates a new right declaring that anything conflicting with that is unconstitutional, creates a circumstance for those who may hold traditional beliefs like for something is important as marriage, that they will be vilified as unwilling to ascent to the new orthodoxy?..... Obergefell was decided under a doctrine known as substantive due process, correct?”
KJB: “If memory serves, substantive due process, and I think there might have been equal protection concerns as well.”
The majority of an individual’s legal rights are not rights that have been specifically articulated in the constitution, but which are assumed rights by any logical thinking person. The majority of an individual’s legal rights are un-enumerated rights which became recognized legal rights as society and the law evolved.
The Senators argument above- that many issues decided by the Court should be issues returned to individual state courts for rulings by individual states that reflect the populace of those individual states -is a flawed, specious argument. The illogicality and incongruity of his argument is that while not everyone is forced to personally religiously agree with the concept of same-sex marriage, that the right to privacy, equal protection under the law, and freedom of association for all persons are long-embedded legal concepts in our system of jurisprudence.
The aptly described by the US Supreme Court in Obergefell, “the right to personal choice regarding marriage is inherent in the concept of individual autonomy... decisions concerning marriage are among the most intimate that an individual can make. ... it would be contradictory to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.”
The Obergefell Court stated:
“Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” ....
“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.....There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices....A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”
In quoting from an earlier decision in Griswold v. Connecticut, the Court further stated, “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. ”
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