Obergefell v. Hodges decision created a new right that is not in the U.S. Constitution, and he questioned the court’s authority to make the decision, as 32 states had passed laws or constitutional amendments against marriage equality.
He brought up a conflict with religion as well.“When the Supreme Court decides that something that is not even in the Constitution is a fundamental right and no state can pass any law that conflicts with the Supreme Court’s edict, particularly in an area where people have sincerely held religious beliefs, 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?” Cornyn asked.“That is the nature of a right,” Jackson responded. “That when there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs.”The Obergefell ruling — which Cornyn appeared to call “Oberfelt” — does not require any religious institution or clergy member to perform a marriage that goes against their beliefs.
There have been questions before the Supreme Court and lower courts about whether businesses and nonprofit groups have a right to refuse service to same-sex couples on the basis of beliefs about marriage.In the 2018 Masterpiece Cakeshop ruling, the Supreme Court vacated the Colorado Civil Rights Commission’s finding that cakeshop owner Jack Phillips had committed illegal discrimination in refusing to create a custom wedding cake for a same-sex couple.
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