Posted on 10/07/2014 1:35:58 PM PDT by SeekAndFind
“Putting the paddles on the chest of a divisive issue with absolutely no hope of the outcome he promises is a hallmark of Ted Cruz,” says GOP consultant Rick Wilson acidly, the memory of last year’s doomed “defund” effort firmly in mind. Okay, but the fine print on what Cruz wants to do is interesting. Typically when social conservatives start talking up amendments aimed at gay marriage, they’re thinking of a substantive change — namely, a new law of the land that says marriage involves one man and one woman and no other combination. Once that’s in the Constitution, even courts can’t mess with it. (I think!) As The Atlantic notes, though, Cruz’s proposed amendment isn’t substantive. It’s procedural.
“It is beyond dispute that when the 14th Amendment was adopted 146 years ago, as a necessary post-Civil War era reform, it was not imagined to also mandate same-sex marriage, but that is what the Supreme Court is implying today. The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment.
“Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts.
“Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.
Note well: Not an amendment that would add one-man-one-woman to the Constitution but an amendment simply to leave the matter in the hands of state legislatures. According to a new poll from YouGov, a majority or plurality of adults in 31 states now favor gay marriage (South Dakotans are split evenly at 43); if the Cruz amendment were adopted, you might still have legalized gay marriage in most U.S. states within, say, 10 years. If you’re going to go to the trouble of getting a bill through two-thirds of each chamber of Congress and three-fourths of the states, why would you settle for a procedural change like that instead of pushing for a substantive change to the law? Every other strong social con in the 2016 field, presumably starting with Huckabee, will be pushing for a substantive amendment to outlaw SSM. Why would Cruz settle for less?
Two reasons: One, his primary base is wider than Huck’s is, and two, Cruz’s amendment is (slightly) more viable than the substantive amendment social conservatives prefer. If Cruz elbows Rand Paul out of the way in Iowa and South Carolina, Rand’s libertarian base will have to decide whether to back someone else in the field or just tune out. Cruz might inherit some of them, but the further he drifts towards Huckabee-an social conservatism, the worse his chances get. And of course, if he wins the nomination and heads to the general, he’ll face a national electorate that’s much warmer to legalized gay marriage than Republican primary voters. This amendment is his attempt to satisfy everyone. For social cons, it’s a signal that he’s with them on the merits. For libertarians and centrists, it’s a signal that he’s a federalist at heart and won’t stand in the way of pro-SSM states going their own way. I’m curious to see what Huckabee and/or Santorum do with that in primary debates. Will they accuse Cruz of selling out social cons by not pushing for the Federal Marriage Amendment instead? Will Cruz tolerate that on the theory that an attack from the right on “values” issue may show centrists that he’s not as “extreme” as the media keeps telling them he is?
As I say, a “let the states decide” amendment is also more salable politically than a “one man, one woman” amendment. In theory it should appeal to the state legislatures whose support Cruz needs to get the amendment enacted; he could even roll this into a broader federalist campaign demanding more state power at the expense of the feds, as some righties who dream of a new constitutional convention advocate. In practice, of course, the amendment is going nowhere: Democratic legislators in Congress and at the state level aren’t going to jeopardize the judicial momentum towards legalized gay marriage, even if Cruz’s idea would put more power in their own hands. (Look how many liberals in Congress are happy to let Obama grab legislative power in the name of enacting a policy they like.) Lefties are highly results-oriented on this issue and right now they’re getting the result they want. They won’t mess with that, especially if it means endorsing an idea proposed by Ted Cruz. Imagine how much better Cruz’s proposal will sound on the stump, though, than the Federal Marriage Amendment does. If he gets up there and says “we need one-man-one-woman as the law of the land,” half the country instantly tunes him out. If he gets up there and says “why can’t the people decide this issue in a democracy?”, he’ll get a respectful hearing even from the undecideds who disagree with him. It’s all part of his populist brand. Ultimately, he’ll frame this as a battle against unelected elite judges pulling power out of voters’ hands more so than a battle against gays getting married.
Exit quotation from an unnamed Republican aide, finding good news in yesterday’s Supreme Court punt: “We don’t have to agree with the decision, but as long as we’re not against it we should be okay… The base, meanwhile, will focus its anger on the Court, and not on us.”
So we need to remove a lot of judges first!
A one-man/one-woman amendment will never, ever pass. Maybe 20 years ago, but not today. Cruz's amendment may not ultimately pass either, but it's got a much, much, much better chance than a one-man/one-woman amendment.
You’re mixing things up. I can sympathize with the situation you are describing but I have to point out your logic is off.
The MA courts have their role and the MA legislature has its role; the MA executive still another role and the state constitutional provisions you cite state unequivocally that neither of the branches shall infringe on the other.
But the MA Court was not infringing on the MA Legislature’s role in legislating. It was ruling on the law’s state constitutionality. That is in within its role to do.
The MA Legislature can legislate that donkeys are to be given human right protections. The MA Courts can rule such a law as unconstitutional within the state.
However, there is nothing stopping the People Of Massachusetts from amending their state constitution in the same spirit that Ted Cruz is proposing to amend the US Constitution. Such an amendment would basically assert that the state courts are to butt out of the state constitutional amendment to define marriage.
Generally this is how it has worked in the past where an amendment to the US Constitution is echoed in state constitutions.
Cruz’ amendment would undo the travesty of Proposition 8 in California where federal courts struck down a state constitutional amendment! That was vicious unfounded overreach and it was done by a homosexual judge. The People of California had gone through great pains to amend their state constitution and then a homosexual federal judge rules it unconstitutional under the US Constitution.
Hmmmmm....
Goes no where but, interesting...
Obviously, you're not paying attention to what's actually happening now.
To the critics who say that this will never pass - you are right - but can’t we learn a lesson from Democrats who repeatedly launch ballot initiatives for things like Weed and Education funding to draw out their base in important election years. Even if it is jousting at windmills a Marriage Amendment will bring out the conservative base, and if that’s not reason enough how about the fact that it’s just the right thing to do? Can’t we ever do something just because it’s right anymore? To those who say that the majority of people surveyed support gay marriage those numbers are national averages. If you only survey likely voters in red/purple states the trend is still pretty strong against gay marriage. Gay marriage, border enforcement and Life are winning issues for the GOP when they try them...
I am paying attention. It is federal judges that are making trouble and it is they that Cruz proposes to rein in.
If a state judge makes trouble then the voters of the state can amend their state constitution and no federal judge can interfere with the state amendment process under Cruz’ proposed amendment to the US Constitution.
In the case of California Proposition 8, the voters of California voted to amend their state constitution to define marriage and a homosexual FEDERAL judge ruled it unconstitutional under the US Constitution. Cruz’ amendment would stop that type of trouble-making dead in its tracks.
So Cruz’ amendment would not stop the trouble at the state level. It would stop it at the federal level. It is up to states to solve their own troublesome state judge problems.
As I said concerning California, California would have a same sex marriage ban in effect today if it were not for a homosexual activist FEDERAL judge.
And all the states that were just yesterday rebuffed by SCOTUS would have their same sex marriage bans in place if it were not for the abhorrent actions of FEDERAL judges which prompted the appeals to SCOTUS.
Why? In virtually every state where homo "marriage" has been put to a plebiscite, it has failed. Even in leftard Minnesota, a bill to amend the state constitution to define marriage as single man/woman failed narrowly. If we had acted in time, it would have passed.
Queer "marriage" is still grossly unpopular, even though it's now legal in a majority of states. It is still not supported by a majority of citizens. If the state legislatures had to vote on an amendment to the Constitution, I suspect a lot of state lawmakers would vote the way The People want.
I'm not saying it wouldn't be an uphill struggle, but it would be worth it. And it's a ditch worth dying in.
I don’t believe this effort is jousting at windmills.
I believe the US voters have witnessed in the last 2 years the fascist behavior of homosexuals prompting vicious shutdowns and prosecutions of Christian businesses.
I believe the mood is shifting in the electorate and they are moving to a position where they support getting a handle on these vicious attacks by homosexual groups, i.e. a backlash is in works.
When voters hear of the abuses of same sex proponents they naturally ask (and I have witnessed such) “what can be done about it?” to which Ted Cruz’ proposal rings clear as a bell.
It’s called leadership.
This is the correct conservative solution to the problem. Now pray that the states are able to sustain support for traditional marriage.
Indeed, at least Cruz is standing up to this tyranny, unlike most of the cowardly worms in the GOP. And true, while I think the country itself is likely toast, I’ll at least stand by and support those that refuse to bow down and submit.
The others, who wish to just accept this depravity, and go on to other issues, well all I can say is I hope they are granted nothing less than the sweet kiss of ebola.
Read this latest breaking:
http://www.freerepublic.com/focus/f-news/3212510/posts
And it is happening everywhere with increasing intensity.
“But the MA Court was not infringing on the MA Legislature’s role in legislating. It was ruling on the law’s state constitutionality. That is in within its role to do.”
I’m not mixing anything up. I am stating my opinion that the action of the Massachusetts court was a violation of the Massachusetts Constitution, which gives power over matters of marriage to the legislature, just as the US Supreme Court overstepped its power in wrongly striking down DOMA.
The illogic of your position can be readily demonstrated even with reference only to your comment. If the people of Massachusetts amend the constitution as you suggest to say that all matters of marriage are to be decided by the legislature and further they add that the Court shall not perform the role of the legislature, and therefore the court should “butt out” of marriage issues (all of which the Massachusetts Constitution already says, by the way), and then the court still strikes down the same act of the legislature, would that be “within its role to do”?
Its role, in fact, is a creature of the Massachusetts Cosntitution. What powers that Constitution does not grant it, it does not have.
As an aside, with no Marbury vs. Madison in Massachusetts, what makes you so certain that the Massachusetts Constituion gives the court the power to strike down acts of the legislature? The Massachusetts Constitution has a provision providing that the Court can give advisory opinion to other branches of government, but whether this gives them the power to strike down other branches acts is not clear at all, although as you could expect, it is not something that the Court itself sees as debatable.
http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1308&context=asml
Or are you just assuming that all courts, under all constitutions have the final say on the constitutionality of the acts of the other branches?
What a brilliant move, Senator Cruz!
At best, support for/opposition to same-sex "marriage" is 50/50 at this point, though that obviously varies geographically. Constitutional amendments tend to get ratified only when there is overwhelming support for the idea. They do not get passed with 50/50 support.
Have Mass voters amended their state constitution to define marriage?
This is entirely stupid in more than one way and is doomed from the start. All bark, and not even a weak bite.
This would nullify not only the 14th Amendment, but would nullify Article IV, Section 1 of the actual Constitution, the Full Faith and Credit Clause. The founders were very strongly in favor of the Full Faith and Credit Clause - it predates the actual Constitution. A version of the Full Faith and Credit Clause is found in Article IV of the Articles of Confederation.
The Full Faith and Credit Clause has been interpreted over and over and over as applying to records across state lines since 1790. Nothing new. Marriages and adoptions included.
Do you really want a situation where adoptions aren’t legal across state lines? Or is he fine with gay adoption, but is really against gay marriage? Because the courts have already told states that they have to recognize adoptions by gays, too. Why is one sacrosanct, and the other is changeable? Makes no sense.
Secondly, this would undo Loving vs. Virgina. You will never see 2/3s of the states vote to undo interracial marriage. It simply will not happen.
I’m wondering why Cruz wants to take this oddly circuitous route, instead of a simple amendment to just ban gay marriage outright?
This makes no sense, unless he wants to be seen as wanting to do something without actually doing anything at all.
Love Ted Cruz. The more I hear about him the more I like.
Rinos like Rand Paul or Romney are so eager to surrender to the liberals on this issue. It is refreshing to see someone stand up for what over half of Americans really believe but have been cowarded into sticking their heads in the sand.
Cruz for President!
“Why? In virtually every state where homo “marriage” has been put to a plebiscite, it has failed.”
Sure, except of course *the last four*.
Sticking our heads in the sand and pretending a majority of the American people is secretly on our side isn’t helpful. If we can’t acknowledge the basic reality, we have no hope of changing it.
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