I think it is very much an issue of will. RASCOE: But, I mean, is there any evidence outside of the Supreme Court nomination hearing that there has been movement on this? And so I think what we are now seeing is the beginning of a new fight and a new battle, and the battle is going to be over these other rights that also precede from that underlying core of privacy in intimate lives. We are now on the precipice of the Supreme Court overruling Roe v. And Republicans have argued that the right to an abortion, because it is not tethered to Constitutional text, isn't a Constitutionally legitimate right. The right to terminate a pregnancy precedes, like the right to marry, from this understanding of personal privacy that has been inferred from the Constitution's guarantee of liberty. MURRAY: I think we have to understand this trajectory in the context of abortion. So, like, how should we take these comments? Like, is there going to be more of a fight over this issue again? RASCOE: The Supreme Court decision on same-sex marriage was made almost seven years ago, and it had seemed like there hadn't really been a lot of serious discussion about it from Republican lawmakers about trying to overturn it. But when we heard Senator Cornyn, for example, taking up the question in Judge Jackson's confirmations, it was to underscore that this was a, quote, unquote, "unenumerated right" and that these unenumerated rights might not enjoy the same kind of constitutional protection and fidelity as those so-called text-based rights like the Second Amendment, like religious liberty. Hodges, they merely extended that logic and noted that the institution of marriage had changed, and it was elastic enough to include the prospect of individuals marrying those of the same sex. And so in 2015, when the court took up Obergefell v. But it has been recognized by the courts as one of the, quote, unquote, "basic civil rights of man" since as early as the 1940s. As they made clear, the right to marry is nowhere. Hodges, which focuses on the right to marry and specifically the right to marry a person of the same sex, as being unrooted in constitutional text. MURRAY: Well, the Republicans were at great pains to emphasize that Obergefell v. RASCOE: I wonder if we could just start with you characterizing what Republican senators had to say about Obergefell during these hearings. MELISSA MURRAY: Thank you for having me, Ayesha. Wade? Joining us now to talk about it is Melissa Murray, an NYU law professor and co-host of the "Strict Scrutiny" podcast about the Supreme Court. RASCOE: Could Obergefell face a fight like the one we've seen with Roe v. JOHN CORNYN: 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? And last week, Senator John Cornyn was one of the Republicans who asked Judge Jackson about it. Hodges was decided by a 5-4 court ruling. The landmark cases known as Obergefell v. In 2015, the high court declared same-sex marriage legal in this country. During Judge Ketanji Brown Jackson's confirmation hearing last week, she was asked by Republican senators about critical race theory, how to define the word woman, and about same-sex marriage. And now to a different Supreme Court question.
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