Via Newsmax, skip to 4:20 for the key part. He’s not saying anything here that, say, Marco Rubio hasn’t but the McConnell endorsement surely cinches this among grassroots righties as the official RINO position. (Sorry, Marco!) Meekly submitting to the will of the Court isn’t what warriors do. Which raises the question: What should the GOP, as a party, do to resist?
Should they encourage county clerks to refuse to issue marriage licenses to gays? That might work short-term, until other state officials can be found who’ll grant the licenses, but it’s likely to bring a lot of legal grief upon the holdout clerks.
Two things can happen if a Kentucky clerk won’t issue a marriage license to a same-sex couple: They can resign, or go to jail, said Sam Marcosson, a constitutional law professor at the Louis D. Brandeis School of Law at the University of Louisville…
Clerks and probate judges hold the keys to marriage in counties around the country, and in many rural areas, there are few alternatives for hundreds of miles. Couples turned away could seek a court order, and a clerk who still refuses to issue a license could be jailed for contempt, Marcosson said.
They also risk criminal official misconduct charges, said Warren County Attorney Ann Milliken, president of the Kentucky County Attorneys Association. The misdemeanor, punishable by up to a year in jail, is committed when a public servant “refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office.”
Declining to issue a license is a good way for an individual clerk to opt out of a system he or she believes is immoral but it’s not a sustainable strategy for resisting SCOTUS’s decision en masse. Most clerks won’t risk their jobs by quitting, even if they’re leery of SSM, and the ones who do will be replaced. A comprehensive solution would require a constitutional amendment of some sort, as Ted Cruz has been urging. McConnell’s asked about that below and he dismisses it out of hand: Realistically, he says, there’s no amendment that the public will support to punish the Supreme Court for this decision. Public backing of SSM is consistently above 50 percent in polls; if you believe yesterday’s CNN survey, 59 percent give thumbs up to SCOTUS’s ruling. Cruz himself was asked about that recently by Jorge Ramos and he laughed off the polling. Don’t go by what the polls say, he argued, go by what the states themselves have actually done. Traditional marriage laws have passed repeatedly by popular referendum. True enough, but to overturn SCOTUS now, you’d need not just three-quarters of the states but two-thirds of Congress at a moment when supporting SSM has become an absolute moral litmus test for Democratic pols among the lefty base. How is McConnell going to find 67 votes in the Senate to pass some sort of Federal Marriage Amendment? There were, in fact, four members of his own caucus who supported gay marriage as of last June. He might have trouble getting to 50 votes to overturn SCOTUS, let alone 67.
What about Cruz’s other idea, for an amendment that would make Supreme Court justices periodically answerable to the public in the form of retention elections? Megyn Kelly confronted him on the air about that last night. Why do you think that John Roberts or Anthony Kennedy would be jeopardized by a retention election, Kelly asked him, rather than Antonin Scalia or Clarence Thomas? A country that elected Barack Obama twice by landslide margins is a country capable of ousting one or more conservatives on the Court. Cruz has no answer for that, and he offers no reason to think that passing some earth-shaking Supreme Court overhaul like this would be any easier than simply impeaching Roberts or Kennedy for their poor decisions (an outcome which he concedes is impossible given Congress’s reluctance to impeach anyone). Even if all Senate Republicans backed the idea, which they wouldn’t, are there 13 Democrats who’d join with them, knowing that it’s very likely Hillary Clinton will be the next president and that one of the Court’s aging conservatives is apt to retire soon? Why would they risk the chance of a new, enduring liberal Court majority by exposing the current liberal justices to retention elections? Meanwhile, Republicans would balk at the thought that even young appointees like Alito and Roberts, who have decades ahead of them on the Court, could be forcibly retired by liberal voters in an election. Retention elections are a supremely risky (no pun intended) strategy for punishing the Court over ObamaCare and gay marriage and they’d be seen as such in Congress. That amendment’s going nowhere either, even though it makes for a nifty soundbite for Cruz on the presidential trail. So what now?