Questions for Sessions on same-sex marriage

By Bryan Fischer

Follow me on Twitter: @BryanJFischer, on Facebook at "Focal Point"

Host of "Focal Point" on American Family Radio, 1-3pm CT, M-F www.afr.net

Sen. Jeff Sessions faced the Senate Judiciary Committee this week in a confirmation hearing to become the next Attorney General of the United States.

By all accounts, the left didn't lay a glove on Sessions in the first round, despite their repeated efforts to smear him as a racist. There is little question that Sen. Sessions will be a vastly superior AG to his predecessors, Eric Holder and Loretta Lynch. He has a genuine commitment to the rule of law, and will refrain from politicizing the office as was done under President Obama.

I have immense regard and admiration for Sen. Sessions. He has been, over the course of his public career, a stalwart advocate for the issues we care about. He has been a staunch defender of religious liberty and unborn human life.

However, he made comments to Sen. Dianne Feinstein that should give conservatives pause and should prompt us to ask for clarification from the senator. Here is how their exchange went on gay marriage (emphasis mine):

Sen. Feinstein: "On Nov. 14, 2016, appearing on the TV show '60 minutes,' the president-elect said that the issue of same-sex marriage is 'already settled, it's law – it was settled in the Supreme Court, it's done, and I'm fine with that.' Do you agree that the issue of same-sex marriage is settled law?"

Sen. Sessions: "[The] Supreme Court has ruled on that, the dissents dissented vigorously, but it was 5-4 and five justices on the Supreme Court, the majority of the court, has established the definition of marriage for the entire United States of America, and I will follow that decision."

With regard to Roe v. Wade, Sessions was quite forthcoming on his assessment of that opinion from a constitutional standpoint. Feinstein asked him if he still believed that Roe v. Wade is one of the worst Supreme Court rulings of all time. "It is," he answered. "I believe it violated the Constitution and really attempted to set policy and not follow law." Even so, he went on, "It is the law of the land... and I would respect it and follow it."

Now I am all for giving Sen. Sessions every benefit of the doubt, and I understand there were unimaginable pressures on him to toe a politically correct line on both of these issues. A politically incorrect response on either likely would have torpedoed his nomination.

However, setting all that aside, I must confess I find myself deeply disappointed in Sen. Sessions' responses. With regard to Roe, it's difficult for me to reconcile his statement that it "violated the Constitution" with his statement that "I would respect it and follow it."

Sen. Sessions testified that Roe is a violation of the Constitution he will take an oath to uphold, and yet intends to regard it as "the law of the land." This is confusing at best. If it's contrary to the Constitution, how can an attorney general in good faith pledge to "respect and follow it" without violating his oath of office? It's a question that deserves an answer.

The oath Sen. Sessions will take obligates him to "support and defend the Constitution of the United States" and to "bear true faith and allegiance to the same." There is nowhere in his oath of office where he pledges to "support and defend" opinions of the Supreme Court, whether on the sanctity of life or marriage.

The same confusion exists with regard to his statement on Obergefell. It is a noteworthy – and perhaps innocent – omission that Sen. Sessions did NOT say that Obergefell "violated the Constitution" as he said with respect to Roe.

But Obergefell is clearly unconstitutional for a host of reasons, and has no more moral authority than Dred Scott or Roe v. Wade.

But Sen. Sessions' acceptance of Sen. Feinstein's statement that Obergefell is "settled law," his acceptance of the premise that the Supreme Court has either the right or the authority to "establish...the definition of marriage for the entire United States," and his commitment to "follow" their opinion, is confusing at best and alarming at worst.

The plain constitutional truth is that the Supreme Court cannot possibly "make law." It doesn't have that authority. It can issue "opinions" but it cannot make law. Thinking that something is a law when it plainly is not does not magically make it a law.

According to Article I, "All legislative Powers...shall be vested in a Congress of the United States. "All" means "all," as in "all." Every last bit of authority to make law is granted to Congress, leaving none of it for the Supreme Court. In other words, the Court has no authority to create a law that defines marriage for the country even if it wanted to.

Sen. Sessions seems here to indicate that his office will treat same-sex marriage as a fundamental, constitutional civil right. This raises questions about whose side Attorney General Sessions has obligated himself to take if a Christian baker, for example, were to be charged in federal court by a gay couple with a violation of their fundamental civil right to same-sex marriage. Has not Sen. Sessions committed his office to take the side of the gay couple rather than the Christian vendor?

If an effort to overturn Obergefell were to make its way through the courts, whose side would Attorney General Sessions take? Has not his declaration that he would "follow" the Supreme Court's decision obligate him to take the side of homosexual activists rather than the side of defenders of natural marriage?

None of this is intended as an accusation against Sen. Sessions. It is simply a call for clarification. Pro-family conservatives have questions that deserve answers, and Sen. Sessions is the only one who has them.

(Unless otherwise noted, the opinions expressed are the author's and do not necessarily reflect the views of the American Family Association or American Family Radio.)

© Bryan Fischer