“Putting the paddles on the chest of a divisive issue with absolutely no hope of the outcome he promises is a hallmark of Ted Cruz,” says GOP consultant Rick Wilson acidly, the memory of last year’s doomed “defund” effort firmly in mind. Okay, but the fine print on what Cruz wants to do is interesting. Typically when social conservatives start talking up amendments aimed at gay marriage, they’re thinking of a substantive change — namely, a new law of the land that says marriage involves one man and one woman and no other combination. Once that’s in the Constitution, even courts can’t mess with it. (I think!) As The Atlantic notes, though, Cruz’s proposed amendment isn’t substantive. It’s procedural.
“It is beyond dispute that when the 14th Amendment was adopted 146 years ago, as a necessary post-Civil War era reform, it was not imagined to also mandate same-sex marriage, but that is what the Supreme Court is implying today. The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment.
“Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts.
“Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.
Note well: Not an amendment that would add one-man-one-woman to the Constitution but an amendment simply to leave the matter in the hands of state legislatures. According to a new poll from YouGov, a majority or plurality of adults in 31 states now favor gay marriage (South Dakotans are split evenly at 43); if the Cruz amendment were adopted, you might still have legalized gay marriage in most U.S. states within, say, 10 years. If you’re going to go to the trouble of getting a bill through two-thirds of each chamber of Congress and three-fourths of the states, why would you settle for a procedural change like that instead of pushing for a substantive change to the law? Every other strong social con in the 2016 field, presumably starting with Huckabee, will be pushing for a substantive amendment to outlaw SSM. Why would Cruz settle for less?
Two reasons: One, his primary base is wider than Huck’s is, and two, Cruz’s amendment is (slightly) more viable than the substantive amendment social conservatives prefer. If Cruz elbows Rand Paul out of the way in Iowa and South Carolina, Rand’s libertarian base will have to decide whether to back someone else in the field or just tune out. Cruz might inherit some of them, but the further he drifts towards Huckabee-an social conservatism, the worse his chances get. And of course, if he wins the nomination and heads to the general, he’ll face a national electorate that’s much warmer to legalized gay marriage than Republican primary voters. This amendment is his attempt to satisfy everyone. For social cons, it’s a signal that he’s with them on the merits. For libertarians and centrists, it’s a signal that he’s a federalist at heart and won’t stand in the way of pro-SSM states going their own way. I’m curious to see what Huckabee and/or Santorum do with that in primary debates. Will they accuse Cruz of selling out social cons by not pushing for the Federal Marriage Amendment instead? Will Cruz tolerate that on the theory that an attack from the right on “values” issue may show centrists that he’s not as “extreme” as the media keeps telling them he is?
As I say, a “let the states decide” amendment is also more salable politically than a “one man, one woman” amendment. In theory it should appeal to the state legislatures whose support Cruz needs to get the amendment enacted; he could even roll this into a broader federalist campaign demanding more state power at the expense of the feds, as some righties who dream of a new constitutional convention advocate. In practice, of course, the amendment is going nowhere: Democratic legislators in Congress and at the state level aren’t going to jeopardize the judicial momentum towards legalized gay marriage, even if Cruz’s idea would put more power in their own hands. (Look how many liberals in Congress are happy to let Obama grab legislative power in the name of enacting a policy they like.) Lefties are highly results-oriented on this issue and right now they’re getting the result they want. They won’t mess with that, especially if it means endorsing an idea proposed by Ted Cruz. Imagine how much better Cruz’s proposal will sound on the stump, though, than the Federal Marriage Amendment does. If he gets up there and says “we need one-man-one-woman as the law of the land,” half the country instantly tunes him out. If he gets up there and says “why can’t the people decide this issue in a democracy?”, he’ll get a respectful hearing even from the undecideds who disagree with him. It’s all part of his populist brand. Ultimately, he’ll frame this as a battle against unelected elite judges pulling power out of voters’ hands more so than a battle against gays getting married.
Exit quotation from an unnamed Republican aide, finding good news in yesterday’s Supreme Court punt: “We don’t have to agree with the decision, but as long as we’re not against it we should be okay… The base, meanwhile, will focus its anger on the Court, and not on us.”