Ted Cruz claims to be a "constitutionalist," but expects us to believe that the issue of gay marriage should be left to "debate...in the legislative chambers."
In response to President Barack Obama's comments about gay marriage in the State of the union, the Texas senator said:
I think the proper place to debate those issues is in the legislative chambers.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.
Wrong.
The Supreme Court decided to review marriage equality cases this spring. This concerns me because the Fifth Circuit Court, which presides over my home state of Texas, also took up a marriage equality case. However, the Fifth Circuit may refrain from making a decision until the Supreme Court decides.
The Supreme Court has historically refrained from considering this social question. In the 1970s Baker v. Nelson was dismissed due to a “lack of federal question.”
On such a contentious issue, however, it is no surprise judges would refrain from taking a particular side. I still find it ridiculous because they are appointed for the very purpose of making these kinds of decisions. A judge can make a legal decision concerning the Constitution without political repercussions.
Credit: AP
Understanding the judiciary branch and how it works with the other branches is very important. The executive branch constitutes a form of elected and limited monarchy with a single leader given the power of the U.S. military. The legislative branch is representative democracy with the power of the purse, and it limits the power of the executive by being the source of law and funding. The judiciary branch is aristocratic in nature separating them from public opinion, and they check the constitutionality of actions by the executive, the legislative and the states, and they possess no executive force of their own. This combination of three government types constitutes a Republic.
According to Article III of the U.S. Constitution settling controversies over the law, such as gay marriage, by a view of the Constitution is directly within the Supreme Court’s authority.
Cruz wants these issues settled in the legislative chambers. The legislative chambers exist for the reason their name implies, to write legislation. It is not their purpose to interpret presently existing law or to concern themselves with legal disputes.
Secondly, the State has not always been involved in marriage. This is a recently formed argument that the states have a “principal interest” in marriage for regulating procreation. When in actuality, it’s none of the federal, state, or local government’s business to regulate relationships for procreation. Personally, I’d prefer to live in a republic where we keep the government out of our private lives… especially our sex lives.
Claiming to be a constitutionalist entails understanding the constitution in depth. Cruz is perfectly right in upholding the principle of the 10th Amendment, that authorities not within the federal government are reserved to the states. I would argue that a person’s relationships and sex life are not within the just authority of any government, but that’s not the point I will make here.
The constitution already tells us how we should address the issue of gay marriage.
The Fifth Amendment tells us that no person may be deprived of liberty without the due process of law, and the 14th Amendment tells us that no State may deprive a person of liberty without due process and ensures equal protection under the law.
You’ll notice in the text there are no caveats. You are guaranteed you will not be deprived of liberty and the State will treat you equally.
Naturally, you are at liberty to marry any consenting adult your heart desires based on equal protection and due process. There are literally thousands of benefits handed out to married couples that are not available to homosexuals, a blatant violation of equal protection. I would argue giving special treatment to married couples is a violation of equal protection, but I’m just a crazy libertarian that's all about equality and stuff.
It is absolutely crucial that Texas, being central to a current gay marriage case, lead the charge in equality and liberty. We should not call ourselves “constitutional” conservatives, nor should we act as many of them do.
Senator Ted Cruz (R-TX) speaks to the South Carolina Tea Party Coalition convention on January 18, 2015 in Myrtle Beach, South Carolina. Credit Richard Ellis/Getty Images
As Glenn Beck has mentioned we should be classic liberals. We don’t want the government meddling in our lives. As it is put in Plato’s Republic, “Justice means minding one's own business and not meddling with other men's concerns.”
What consenting adults do in their bedroom or how consenting adults form their relationships is no business of mine or the State.
Knowing what the constitution says and holding to consistent classical liberal principles demonstrates that this is not a decision for the legislature or the states. It is a decided principle of liberty, and the Supreme Court should have the courage to say it, the executive branch should have the courage to enforce it, and we as free people should have the sense to respect it even if we don’t like it.
Oh, by the way. I wrote all of this while wearing a "Vote for Ted Cruz" T-shirt I got at CPAC.
This issue was discussed from a constitutional point of view in a debate hosted by Patriot Talon. It was a debate between Professor Eric Lopez (my old Constitutional Development professor) and Father Key. This was a fascinating discussion I recommend taking the time to watch.
You can find Presley on Facebook, on his blog The Lyceum, or at Patriot Talon.
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