When the Supreme Court announced that it would finally weigh in on whether all 50 states must allow LGBT couples to legally marry, I wondered how long it would take for the religious right and its allies in Congress to retaliate with a constitutional amendment that would have the effect of banning same-sex marriage. Well, we didn’t have to wait long. Senator Ted Cruz (R-Tex.) has announced that he will propose a constitutional amendment that would bar federal courts from throwing out state-level bans on same-sex marriage.
Just hours after the State of the Union address, Cruz told the Washington Blade, the nation’s oldest LGBT newspaper, that he is going ahead with a threat he issued in October after the Supremes initially punted on the marriage equality issue. As Cruz sees it, he felt compelled to propose what amounts to a court-stripping amendment because this is a matter of states’ rights.
“I’m a constitutionalist. From the beginning of this country, marriage has been a question of the states, and we should not have the federal government, or unelected judges, setting aside the policy judgment of the elected legislatures and imposing their own instead.”
Cruz further added that the Founding Fathers intended for the states to be the nation’s “laboratories of democracy” by giving them the freedom to “adopt and reflect different policy choices state by state.” What Cruz left out is that the Fourteenth Amendment requires the states to ensure every person has the equal protection of the laws. Evan Wolfson of Freedom to Marry tried to remind him of this. He pointed out that the Fourteenth Amendment is “a floor beneath which the states may not sink”–and that judges are there as “a central part of the checks and balances” to ensure the states don’t drop beneath that floor. In a similar vein, Stephen Peters of the Human Rights Campaign declared that Cruz is ignoring “the fundamental element of the Constitution.”
Six attempts have been made to amend the federal Constitution to declare that only heterosexual marriages would be legal in this country–and all have failed. Tellingly, three of those attempts were made when the Republicans had complete control of Congress–the same situation that prevails now. If Cruz’ amendment does make it out of Congress, at least one governor has indicated he would support it–Louisiana’s Bobby Jindal. Just hours after leading his “Response” prayer rally, Jindal told ABC’s George Stephanopoulos that if the Supreme Court issues a decision that has the effect of throwing out Louisiana’s constitutional ban on same-sex marriage, “I certainly will support” Cruz’ proposed amendment.
We already know that Cruz wants to effectively gut the Fifth and Sixth Amendments. Now it looks like he wants to gut the Fourteenth Amendment as well. I know that Cruz and his tea party buddies think that the incorporation doctrine–which would be the likely basis for any Supreme Court decision that opens the door to marriage equality–is librul judicial activism run amok. But if he has any ambitions of running for president in 2016, he could at least be a little less blatant about his wingnuttery.