Some 2016 Candidate Responses to the Marriage Ruling are Absurd, Even for Conservatives

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Not a single Republican candidate for president in 2016 agrees with the Supreme Court ruling overturning state laws barring same-sex couples from marriage rights. That much is unsurprising, with the reactions ranging from “That’s terrible, but it’s the law now” to “WHARGARRBL THE END IS NIGH” to the (sort of?) refreshing “Fine, but let’s depoliticize marriage.” But some have gone even further, calling for everything from judicial term limits to defunding the Court. These kind of reactions are absurd, anathema to conservatism, and should disqualify their proponents from serious consideration for their party’s nomination.

Bobby Jindal, currently 15th in the polls, had the following measured response: “If we want to save some money, let’s just get rid of the court.” Surely the governor was just being flippant and doesn’t actually want to disband the highest court in the land. At least I would hope so, especially after his attempt to keep the GOP from being the “stupid party”. Defunding the court would only save $88.2 million a year anyway, an imperceptably small amount of the $3.9 trillion total federal budget.

Next up in the overreaction competition was, unsurprisingly, Mike Huckabee, who without a smidgen of irony, cited MLK as a guide for how states and citizens should resist marriage equality.

“They will go the path of Dr. Martin Luther King, who in his brilliant essay the letters from a Birmingham jail reminded us, based on what St. Augustine said, that an unjust law is no law at all. And I do think that we’re going to see a lot of pastors who will have to make this tough decision.”

I’m sure the Reverend would have a thing or two to say about being used in such a way.

Regardless, there is no “tough decision” for pastors. If they don’t want to marry same-sex couples, they don’t have to. The court ruling has nothing to do with anyone’s religious beliefs or church practices. It was only about state marriage licenses granted by public officials. To my knowledge no pastor has ever been forced to marry an interracial couple in the 48 years since Loving v Virginia overturned state laws banning them, so why would this be any different?

But the gold medal in post-Obergefell hysterics must, by all laws of nature, go to Ted Cruz. While the junior Texas senator submitted the standard paeans to religious liberty and surely imminent reverse-reverse discrimination, he went a step further than any other candidate and trotted out his old constitutional amendment proposals.

The first amendment would allow states to set their own restrictive definition of marriage, which would immediately undo the Supreme Court decision preventing those discriminatory restrictions. It would also then necessarily lead to some states, mostly in the South, reupping their same-sex marriage bans. They would then have to answer the question of whether existing marriages issued between Obergefell and any new ban would be recognized. The result would be nothing short of a legal and moral nightmare of families torn apart, adoptions halted, children denied their actual parentage, and resumption of second-class citizenship for hundreds of thousands of otherwise committed, stable same-sex couples.

As bad as that is, his second amendment proposal could be even worse. Cruz suggests upending the Supreme Court itself by requiring periodic retention elections, or reconfirmation, to make sure life-termed justices are abiding by the will of the people (whatever that is). The mind reels at a constitutional scholar and former solicitor-general who has himself argued cases before the Court suggesting such a thing.

The third branch of government is supposed to be the one not subject to democratic influence, in order to keep a check on the two that are. The ultimate irony is that Cruz wants to inject more public influence on the Supreme Court, which he accuses of…bowing to public pressure in its recent decisions. The idea is so self-defeating that it’s a wonder Cruz himself didn’t “promptly [vanish] in a puff of logic” upon uttering it.

The possible details of such retention elections are even more obscene than the idea itself. Who would get to vote in them? Just the Senate, which confirmed the justices in the first place, in a reconfirmation vote? In a supermajority, as original confirmation votes require, or a simple 51? Or perhaps both houses of Congress? What if one approves and one denies? Is there a conference between the two? Are amendments allowed to restrict the justice to certain cases or issues to allow a compromise? Or would there be a national popular vote, the very archnemesis of conservative federalism?

Presumably Cruz has proposed this amendment in order to retain a more conservative balance in the court. What happens when power shifts in Congress? What if the retention elections were every 10 years and both George W Bush appointees were up for a vote with a Democrat-controlled Senate and Obama in the White House? Instead of the current 5-4 split according to the whims of Justice Kennedy’s daily mood, we have a 7-2 liberal supermajority to ram through everything Cruz fears and more.

It should be politically disqualifying for a “courageous conservative” who wants to “restore our Constitution” to propose fundamental changes to that Constitution that would forever alter the very nature of one-third of the federal government. But as long as he does it with a Texan accent in a preacherly tone, the teeming heartland masses will lap it up like he’s John Rafael Adams.


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