Showing why he’s polling in a crowded 2016 GOP field at only four percent, 44-year-old first-term Sen. Ted Cruz (R-Texas) went off-the-wall, insisting the Supreme Court “rewrote the Constitution,” ruling in Obergefell v. Hodges June 26 legalizing same-sex marriage. Calling the ruling a “threat to our democracy,” Cruz ranted to about judicial activism bypassing the proper role of Congress. His fellow GOP presidential colleague Louisiana Gov. Bobby Jindal called for an end of the Supreme Court. “Let’s just get rid the court,” said Jindal, the East Indian-origin governor of Louisiana, showing astonishing ignorance of the U.S. Constitution. For right wing extremists like Cruz, Jindal and former Arkansas Gov. Mike Huckabee they scream judicial “fiat” or “activism” only when the High Court rules against their right wing agenda. Conservatives applaud the Supreme Court when they rule against liberals.
Texas Atty. Gen. Ken Paxton called the Supreme Court’s decision on same-sex marriage “a lawless ruling,” proving, if nothing else, he’s unfit to serve as Texas attorney general. When the Supreme Court rules, Paxton knows it’s a legal ruling, setting precedent for federal law. Calling it a “lawless ruling,” shows that he’s ready and willing to go rogue when federal law doesn’t meet his conservative wishes. Paxton and other conservatives, like 2016 GOP candidate former Arkansas Gov. Mike Huckabee, sees the same-sex ruling as violating the First Amendment. “A ruling by the U.S. Supreme Court is considered the law of the land, but a judge-made edict that is not based in the law or the Constitution diminishes faith in our system of government and the rule of law,” said Paxton, completely confusing the role of the judicial and legislative branches in making U.S. laws.
When California initiative Prop. 8, banning same-sex marriage, passed Nov. 4, 2008 52%-47%, it was a direct democratic process expressing the will of voters. If Paxton’s views were true, the courts would have no place in determining the constitutionality of laws or state initiatives. After costing California millions to put Prop 8 on the ballot, the California Supreme Court determined it was unconstitutional and struck it down. Judges don’t, as right wing extremists like Paxton insist, “diminish faith in our system of government and the rule or law,” they determine whether well-intentioned lawmakers or voters violate the U.S. Constitution. Conservatives don’t complain about “judicial activism” when courts rule favorably for their causes. Paxton and Texas Gov. Greg Abbott insist that they will not prosecute any Texas employee that refuses to implement the new same-sex marriage law.
Huckabee says the Supreme Court redefined marriage, ruling in favor of same-sex marriage. Biblical, religious, historical and traditional definitions of marriage, like now defunct California Prop 8, defiine marriage as between one man and one woman, had nothing to do with Obergafell v. Hodges, simply ruling that the state could no longer prevent same-sex couples from getting marriage licenses. No one on the High Court redefined marriage, only ruled that legal contracts administered by the states, known as marriage licenses, must be available to all parties, including gays and lesbians. Years of state and federal courts’ rulings determined that “domestic partnerships” or “civil unions” violated the 14th Amendment rights of “due process” and “equal protection” of the law against same-sex couples. Conservatives like Cruz, Huckabee and Jindal completely misread the Supreme Court’s ruling.
Before the Supreme Court’s June 26 ruling approving same-sex marriage, states like Indiana and Arkansas, passed “religious freedom” bills, giving folks with religious convictions to right to deny goods and services of gays and lesbians. “Texans of all faiths must be absolutely secure in the knowledge that their religious freedom is beyond the reach of government,” insisted Paxton, once again, arguing. like Indiana Gov. Mike Pence, that businesses could refuse service to anyone based of religious convictions. Surely Pence and other conservatives know the First Amendment doesn’t give citizens a right to discriminate because of strongly held beliefs, religious or otherwise. Passing new laws giving “persons of conviction” the right to discriminate goes against established civil rights laws. Conservatives know that the Constitution’s Separation Clause prevents religious expression in the public square.
Voting 5-4 to make same-sex marriage the law of the land, the Supreme Court did not redefine marriage, only told city, county, state and federal clerks that civil marriage contracts must go to all citizens, not just heterosexuals. Five justices heeded the growing body of state and federal rulings that determined that “domestic partnerships” and “civil unions” violate Brown v. Board of Education, creating a separate class for gays and lesbians. Conservatives can’t have it both ways: Accepting judicial “activism” or rule by fiat when it serves their right wing agenda, while, calling, as Jindal did, to get rid of the Supreme Court when rulings go against his views. When judges at the municipal, state, district, circuit or high courts rule on existing law, it’s not to undermine the Constitution but to protect it. Conservatives must concede that all branches of government are necessary under the U.S. Constitution.
