this is an unenameerated fundamental right and the voters, whatever they ve said is irrelevant because we, five members of the supreme court, are going to decide what the law of the land should be and anybody who disagrees with us will be labelled a bigot or be accused of discrimination, even if their believes happen to flow from sincerely held religious conviction, like that of a marriage between man and woman. you ve already said you see why this is a concern. i see why it is a concern and although the supreme court is not bound, in the sense of having to apply prior precedent, there is starry desisis in our system and there s standards in that world that the supreme court applies when it it s asked to sorry.
to do that? if it s not mentioned in the constitution, where does the right of the court to substitute its views for that of the elected representatives of the people, where does that come from? the court has interpreted the 14th amendment to include this component. the unenumerated right to substantive due process and the court has said that the kinds of things that qualify are implicit in the concept of ordered liberty or deeply rooted in our nation s history and tradition. those are standards that identify narrow set of activities. well, judge, in the obergefell case, judge roberts in his dissent noted that the court invalidated marriage laws
liable if any, if it s a civil case. and sometimes there are even questions presented to the jury that they have to determine the facts. at the appellate level, as you said, there is already a record, and the court is looking primarily at the law. the legal principles that guided the decision below based on the factual record. and importantly, at the appellate level, there are standards of review that the court of appeals applies when it decides how to review whether or not to reverse or affirm the judgment of the lower court. and i ve been very mindful, especially as a trial judge, of the standards of review. when i was prepping lawyers for oral argument before appellate courts, i would often
0 christianity, judaism, islam, embraces traditional definition of marriage, correct? i am aware that there are various religious faiths that define marriage in a traditional way. do you see that when the supreme court makes a dramatic pronouncement about the invalidity of state marriage laws, that it will inevitably sit in conflict between those who ascribe to the supreme court s edict and those who have a firmly held religious belief that marriage is between a man and a woman? woman? well, senator, these issues are being litigated, as you know, throughout the courts as people raise issues. i am limited with what i can say about them. i m aware there are cases i m not asking you to decide a case or predict how you would decide to, i m just asking isn t it apparent that 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 w
0 of marriage, correct? i am aware there are various religious faiths that define marriage in a traditional way. do you see that when the supreme court makes a dramatic pronouncement about the invalidity about state marriage laws, it will inevitably set in conflict between those who ascribe to the supreme court s edict and those who have a firmly held religious belief that marriage is between a man and a woman? well, senator, these issues are being litigated, as you know, throughout the courts i as people raise issues and so, i m limited in what i can say about them. i m aware there are cases i m not asking you to decide a case or predict how you would decide in the future. i m asking isn t it apparent that when the supreme court decided 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 believes, doesn t that effec