Cruz’s efforts to stop marriage equality aren’t likely to succeed; Huckabee doesn’t seem to understand how government works
Former Arkansas Gov. Mike Huckabee made a peculiar argument on Jan. 20 on conservative political commentator Hugh Hewitt’s radio show. The 2016 presidential aspirant said, in essence, just because federal courts strike down state same-sex marriage bans, the president or Congress or state governors and legislatures don’t have to follow those rulings.
“If the federal Supreme Court rules that same-sex marriage is protected under the 14th Amendment, you still have to have Congress and the president act to agree with it, because one branch of government does not overrule the other two,” Huckabee said.
“Constitutionally, the courts cannot make a law,” he added. “They can interpret one. And then the legislature has to create enabling legislation, and the executive has to sign it, and has to enforce it.”
Another 2016 presidential aspirant, Sen. Ted Cruz, R-Texas, has used similar language. The fiery Republican has consistently slammed federal judges for what he calls “judicial activism” — or what political partisans describe as legislation from the judicial branch.
While Huckabee’s rambling statement seems to show a lack of comprehension about how the three branches of the federal government actually interact, Cruz’s efforts are, according to one observer, part of social conservatives’ last stand against the inevitable nationwide recognition of same-sex marriage.
“They’re going back to the states’ rights argument, saying states should decide if it recognizes marriages,” said Austin lawyer Brian Thompson.
Thompson recently represented Austin couple Sarah Goodfriend and Suzanne Bryant in a legal battle over the couple’s marriage license, which was appealed to the Texas Supreme Court by state Attorney General Ken Paxton.
Thompson said it’s also a change in tactics for the right wing.
“It’s different from what it used to be. [Social conservatives] now realize when you say ‘outlaw same-sex marriage,’ there’s no political argument to hide behind.
You look like a bully even in states without same-sex marriage. But if you say ‘let states decide,’ you still have political backing,” Thompson said.
But potential 2016 presidential candidates are looking for a different type of political backing, said Matthew Wilson, an associate professor of political science at
Southern Methodist University. They’re looking for the voters pivotal to primary election success.
Unlike legal scholars, politicians use “more sweeping and broader statements” to get a point across. The election tactic is more about campaign messaging than it is legal maneuvering.
“Legal scholars look at the nitty-gritty. Politicians just want to say, ‘Washington, D.C. can’t tell us what to do,’” Wilson said.
But Cruz and Huckabee are taking different routes to 2016. Huckabee is campaigning, he’s just using less reliable arguments, in part because he has a narrow appeal, just targeting evangelical Protestants, Wilson said. Though a reliable GOP voting bloc, without distinguishing himself when it comes to other policies, Huckabee won’t make it as far as a candidate like Cruz in the presidential primary election.
Cruz also has the advantage of currently serving as an elected official. Using his bully pulpit in the U.S. Senate, Cruz has re-introduced, with 11 other senators, the State Marriage Defense Act on Feb. 10. (He first introduced in the bill in 2014 with hard-right Sen. Mike Lee, R-Utah.) The purpose of the bill is to circumvent the expected U.S. Supreme Court ruling overturning marriage equality bans.
Ultimately arguing marriage equality is “a question for the states,” Cruz has also inserted language stating his support for “traditional marriage.” He also plans to introduce a constitutional amendment barring federal recognition of same-sex marriage later this year.
For a constitutional amendment to pass, “there has to be an overwhelming national consensus,” Wilson said. An amendment must pass with a two-thirds vote in the House and Senate and be ratified by three-fourths of states at a constitutional convention.
None of those outcomes are likely — something Cruz will use to his advantage, Wilson suggested.
“Cruz wants to tell primary voters he tried [to stop same-sex marriage],” Wilson said.
But, Wilson continued, there may be legal precedent to punt same-sex marriage recognition back to the states.
When Supreme Court justices hear arguments in four cases stemming from the Sixth Circuit Court appellate decision upholding bans on same sex marriage or marriage recognition in Kentucky, Michigan, Ohio and Tennessee in April, the justices face two questions. The first asks if the 14th Amendment of the
Constitution requires states to issue same-sex marriage licenses. The second asks if the 14th Amendment requires states that do not issue marriage licenses to same-sex couples to recognize the marriages of those couples performed in jurisdictions that do recognize same-sex marriage.
Aside from the case of Loving v. Virginia, which legalized mixed race marriages, “marriage is traditionally regulated and defined by the states.” States define the age of consent, kinship and blood relations, for example.
Constitutionally, Texas A&M University law professor Meg Penrose previously told the Voice, answering the question of whether or not states are compelled to grant marriage licenses to same-sex couples could be a big step.
But whether presidential aspirants like Cruz or Huckabee will continue to address same-sex marriage and other LGBT issues after the Supreme Court’s likely June ruling remains to be seen.
This article appeared in the Dallas Voice print edition March 6, 2015.