Ted Cruz gets major points for his willingness to fight in a highly public way against the Supreme Court’s unfounded creations of a Constitutional right to gay marriage in the aftermath of Obergefell and for proposing multiple steps he would support, from a Constitutional amendment to a court-stripping bill. He appeared on Sean Hannity and NPR radio, sat down for an interview on Yahoo with Katie Couric, and penned a National Review essay. In each interview, he underscored the argument that submission to the 5-judge majority is not what democracy and respect for the rule of law means.
From Cruz’s Hannity radio interview:
CRUZ: Yesterday and today were both naked and shameless judicial activism. Neither decision—the decision yesterday rewriting Obamacare, for the second time—six justices joined the Obama administration; you now have Barack Obama, Kathleen Sebelius, and six justices responsible for forcing this failed disaster of a law on millions of Americans and simply rewriting the law in a way that is fundamentally contrary to their judicial oaths. Today, this radical decision purporting to strike down the marriage laws in every state, it has no connection to the United States Constitution; they are simply making it up. It is lawless, and in doing so they have undermined the fundamental legitimacy of the United States Supreme Court.
HANNITY: What recourse is available? The only thing I can think of… I’d go back to Levin’s book The Liberty Amendments, and that is, you know, convention of the states. I don’t know what recourse is available. Can you think of any?
CRUZ: There are a number of recourse we have. Let’s focus those on substance, then on the broader structural problem of a lawless court. On substance, on marriage, I’ve introduced a constitutional amendment that would protect the authority of state legislators to define marriage as the union between one man and one woman. We should pass that amendment. I’ve also introduced legislation stripping the federal courts of jurisdiction over legal assaults on marriage. The Constitution explicitly gives congress the power to strip jurisdiction as a check on a lawless judiciary. We should use that. Now the sad thing, Sean, is there aren’t a whole lot of Republicans in Congress willing to stand and fight on either one of those.
Unfortunately a court stripping bill would not provide any protection against the emerging threats to traditional believers in the public square. Nor would it reverse the gay marriage ruling, since it would forbid higher courts from reversing Obergefell or the lower court decision that preceded it. In his National Review article, Cruz proposed judicial retention elections as a potential check on the courts. But such a move would require a Constitutional amendment, which the president has relatively little power to pass.
CNN captured Cruz in Iowa responding to a voter’s question, and he called for an Article V convention to amend the Constitution. The Article V pathway to amend the Constitution is a state-based strategy that circumvents Congress and the White House entirely, making it unclear how electing Cruz would help.
While Ted Cruz was primarily trying to point to his deserved record of a willingness to fight that distinguishes him from many other Republican candidates, Cruz has not yet publicly pointed towards legislation he could pass that would protect our civil rights and allow us to continue to build and organize for our views in the public square. Hence the minus. Cruz is intensely competitive, and we know he hates that minus. We respect his support for marriage and his courage and his co-sponsorship of FADA. We hope he begins to point to it on the campaign trail.
You can see ThePulse2016.com’s full gay marriage report card here.
Maggie Gallagher is a senior fellow at American Principles in Action.