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Kavanaugh Grilled on Obergefell Ruling, Same-Sex Marriage Opinions

President Donald Trump's Supreme Court nominee, Brett Kavanaugh, takes his seat after a break at the Senate Judiciary Committee on Sept. 6, 2018, on Capitol Hill. (AP Photo/Jacquelyn Martin)

WASHINGTON — Supreme Court nominee Brett Kavanaugh refused to give “a thumbs up or thumbs down” to the 2015 case that legalized same-sex marriage across the country under questioning late Thursday from Sen. Kamala Harris (D-Calif.) on whether Obergefell v. Hodges was correctly decided.

Sen. Anthony Kennedy, whose seat Kavanaugh has been nominated to fill, wrote the opinion for the 5-4 majority; states afterward were required to issue marriage licenses to same-sex couples and recognize marriages from other jurisdictions.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death,” Kennedy wrote. “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

At his Senate Judiciary Committee confirmation hearing, Harris asked Kavanaugh for a yes or no answer on whether Obergefell was the right decision.

Kavanaugh replied by citing Kennedy’s opinion –“The days of discriminating against gay and lesbian Americans or treating gay and lesbian Americans as inferior in dignity and worth are over” — in the 7-2 Masterpiece Cakeshop v. Colorado Civil Rights Commission, which narrowly found in favor of the baker who did not want to make a cake for a same-sex couple’s wedding but did not rule on the broader anti-discrimination and religious freedom questions.

“You’ve said that Brown v. Board of Education was one of the greatest moments in the court’s history. Do you believe that Obergefell was also one of those moments?” Harris asked.

“I’ve said, senator, consistent with what the nominees have done that the — the vast swath of modern case law, as Justice Kagan put it, you can’t as a nominee in this seat give a thumbs up or thumbs down. That was — that’s her word,” the judge replied. “And for that reason, those nominees have declined to comment on recent cases, all of them.”

“It’s been a great moment is what I’m asking you, not to comment on the legal analysis. Do you believe that was a great moment in the history of the court?” Harris continued.

“So the — Justice Kennedy wrote the majority opinion saying, ‘The days of treating gay and lesbian Americans or gay and lesbian couples as second class citizens who are inferior in dignity and worth are over in the Supreme Court.’ That’s a very important statement, Senator,” Kavanaugh replied.

Sen. Cory Booker (D-N.J.) asked Kavanaugh if someone has “a legal right to fire somebody just they are gay.”

Kavanaugh noted that “the question, as I am sure you are aware of the scope of employment discrimination law, is being litigated right now.”

“I think that there’s a lot of folks who have real concerns that if you get on the court, folks who are married right now really have a fear that they will not be able to continue those marital bonds,” Booker said. “And we still have a country where if you post your Facebook pictures up of your marriage, someone of the same sex, we still have a majority of states where that employer of yours finds out that you had a gay marriage and that you’re gay, in a majority of American states, you can fire somebody because they are gay. And I guess, you’re not willing to tell me whether you personally, morally, now think if that it is right or wrong.”

The senator asked the nominee about efforts when Kavanaugh served in the Bush White House to push a constitutional ban on same-sex marriage.

Kavanaugh said he didn’t recall opinions he may have expressed at the time. “As you’re well aware, senator, there’s been a sea change in attitude in the United States of America even since 2004,” he added. “…There was debate in the White House about what President Bush was doing, of course.”

Booker asked the judge if he’s ever presided over a same-sex wedding. Kavanaugh said he had not.

“The law of the land protects that right as dictated by the Supreme Court,” Kavanaugh said.