Cruz: Let's face it, Rubio and Trump are using Obama's talking points on gay marriage

Cruz isn’t playing around in trying to consolidate evangelicals in South Carolina, huh?

I’m going to give this statement three Pinocchios, at least as it applies to Rubio.

Speaking at the Carolina Values Summit at Winthrop University, the Texas senator said that the “lawless” decision by the Supreme Court to legalize gay marriage nationwide was “judicial activism.” And he indicated that Rubio and Trump, whom he did not identify by name but as his top two challengers, were flimsy in their opposition to gay marriage.

Even though both oppose gay marriage, each said they would abide by the “law of the land” last year.

“Those are the talking points of Barack Obama,” Cruz said.

The Supreme Court decision, he added, “will not stand.”

Trump and Rubio have indeed said that SCOTUS’s decision legalizing gay marriage is the law of the land, which is why this doesn’t qualify as a total lie. (Trump also said yes last week when a reporter in New Hampshire asked him if gays could expect more “forward motion” on equality during his presidency.) But here’s the thing: Although Cruz won’t join them in saying that, he behaves as though he agrees with them. Unless I missed it, he’s never gone to the crank-ish lengths Mike Huckabee did in insisting that the Court’s decision is non-binding until it’s ratified by the various states’ legislatures. The most he’s said is that states not directly implicated in the Obergefell ruling should ignore it, which sounds like a bold call for civil disobedience but amounts to little more than putting gay-rights activists through their paces legally. If, say, Texas were to ignore Obergefell, it’d be sued immediately by gay residents of Texas and the state supreme court would simply issue an opinion ruling that Obergefell applies in Texas too. Then Texas would have to comply, and Cruz knows it. Cruz has called for civil disobedience if and when government tries to silence pastors, and he’s also proposed various constitutional amendments — one to return marriage to the states, the other to impose retention elections on the Supreme Court — aimed at undoing Obergefell. But as far as treating Obergefell as the current law of the land, I can’t recall him ever seriously challenging that proposition. Go figure that a Harvard Law grad turned state solicitor general turned would-be SCOTUS justice (if this year’s presidential run doesn’t pan out) thinks court rulings need to be followed until they can be undone through proper legal channels.

The most noteworthy difference between Cruz and Rubio on SSM is Rubio saying last year that he opposes an amendment to return marriage to the states, which is a baffling position for a socially conservative candidate in a primary to take. Rubio justified it on grounds that he doesn’t want the feds interfering in marriage, except that … the whole point of that amendment is to undo federal judicial interference in marriage by getting three-quarters of the states to vote to overturn Obergefell. Rubio has since tried to walk that back (kinda sorta), though, saying in November:

“If you live in a society where the government creates an avenue and a way for you to peacefully change the law, then you’re called on to participate in that process to try to change it, not ignoring it, but trying to change the law.

“I continue to believe that marriage law should be between one man and one woman, and that the proper place for that to be decided is at the state level, where marriage has always been regulated, not by the U.S. Supreme Court, and not by the federal government.”

Obergefell may be current law, he emphasized at the time, but it’s not settled law. Between that, his support for letting states decide on marriage, and respecting Obergefell as the law of the land, at least for now, that puts him a lot closer to Ted Cruz’s position than to Barack Obama’s. Again, the only meaningful difference I know of is their disagreement on using an amendment to overturn the decision, and since that amendment’s not going to pass anytime soon anyway, it’s academic. Cruz is trying to get to Rubio’s right on this issue largely through symbolism, proposing amendments that sound good but have no good chance of passing and showing up to Kim Davis’s rally after she was released from jail for contempt to get a photo op, suggesting that he supports individual civil disobedience to endorsing SCOTUS’s decision even though he’s put no real rhetorical muscle behind the effort. There are various reasons to prefer Cruz to Rubio as nominee but, even if you’re anti-SSM, I don’t see how this is a strong one. Especially since Cruz is already on record that rolling back gay marriage isn’t a top-three priority for him.

Update: Here’s the strongest language I’ve found from Cruz on Obergefell:

“My response to this decision was that it was illegitimate, it was lawless, it was utterly contrary to the Constitution and that we should fight to defend marriage on every front,” he said, before promoting constitutional amendments to overturn the ruling and put justices up for retention elections, along with legislation “to strip the federal courts of jurisdiction over challenges to marriage.”

Cruz conceded that none of his proposals are politically feasible at the moment. Once he is elected president, however, Cruz said he will make sure that “we will not use the federal government to enforce this lawless decision that is a usurpation of the authority of we the people in this country.” He also committed to only appoint Supreme Court justices who would not “legislate from the bench” like the justices did in Obergefell.

Okay, but the president’s role in enforcing or not enforcing Obergefell is unimportant. It’s a matter of the states enforcing it, since marriage is a creature of state law. Here again you find Cruz laying down rhetoric that makes it sound like he’s preparing to do something bold when really it’s just symbolism. Even as he’s deriding the decision as illegitimate and lawless, he insists on sticking to Article V procedures or trying a jurisdictional move in Congress to overturn it. Again, how is this different from acknowledging the decision as the current, if not settled, law of the land?

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