Ted Cruz on the marriage ruling

Timothy Kincaid

June 30th, 2015

Ted CruzIt seems a consensus that junior Texas Senator Ted Cruz is seeking to be our nation’s next President. I disagree.

National Public Radio (NPR) interviewed Cruz about the Supreme Court rulings on Obamacare and gay marriage. In addressing the subject of the interview, Cruz has some interesting opinions about the court ruling on marriage equality that guarantees he will get attention.

He says states can just ignore it.

INSKEEP: Justice Scalia, who, as you, right — you worked with when you were a Supreme Court clerk and who you clearly greatly respect, ended his dissent on same-sex marriage with a warning that the court depends on states and the executive branch, the president, to follow its rulings, to respect them, and he warned that the court was moving closer to proving its impotence.

As you know, there are some Republicans who have been talking in general terms of somehow defying the court’s ruling.

Would you encourage state or federal officials who disagree with that ruling to ignore it or defy it in any way?

CRUZ: You know, you’re right, that the final paragraph of Justice Scalia’s dissent was an ominous paragraph. What Justice Scalia was saying was that these decisions are fundamentally illegitimate, that his colleagues on the court are not following their oaths.

Now, the way our constitutional system works, the courts that have the authority to decide cases and controversies between particular individuals. But there is no obligation on others in government to accept the court as the final arbiter of every constitutional question. Indeed, every officer takes an oath to uphold the Constitution.

INSKEEP: Which is a great story. But did I just understand you to suggest that state officials should feel no particular obligation to follow the court ruling if they feel it’s illegitimate?

CRUZ: They should feel no obligation to agree that the court ruling is right or is consistent with the Constitution.

This ruling…

INSKEEP: But does that mean they can ignore?

CRUZ: They cannot ignore a direct judicial order. The parties to a case cannot ignore a direct judicial order. But it does not mean that those who are not parties to case are bound by a judicial order.

And that’s what Justice Scalia was saying in his dissent, which is that the court depends upon the remainder of government trusting that it is faithfully applying the law and — and these judges and justices are disregarding their oaths.

INSKEEP: Did I understand you to say just now that as you read the law, as you read our system, this decision is not binding on the entire country, only to the specific states that were named in the — in the suit.

CRUZ: Article III of the Constitution gives the court the authority to resolve cases and controversies. Those cases and controversies, when they’re resolved, when you’re facing a judicial order, the parties to that suit are bound it. Those who are not parties to the suit are not bound by it.

Now, in subsequent litigation, other courts will follow the precedence of the court, but a judicial order only binds those to whom it is directed, those who are parties to the suit. That’s the way our litigation system works.

Now, this is what Justice Scalia was talking about in his dissent, which is that it has been the case that on a great many issues, others have largely acquiesced, even if they were not parties to the case.

But there’s no legal obligation to acquiesce to anything other than a court judgment.

Which is, of course, a distinction without a difference. SCOTUS has spoken on the matter and no federal court will rule contrary to the determination of the Supreme Court. Cruz is merely advocating avoidance, delay, chaos, and anarchy.

But fear not oh anti-gays, Cruz has found a solution to the horrible horrible badness of equality under the law. It comes in three parts.

[N]umber one, I’ve introduced a constitutional amendment to restore the authority of the states to define marriage as the union of one man and one woman. Number two, I’ve introduced legislation in the United States Congress to strip the federal courts of jurisdiction for attacks on marriage. The Constitution explicitly gives Congress the authority to strip jurisdiction as a check and balance against judicial overreach.

But number three, this week in response to both of these decisions, I have called for another constitutional amendment, this one that would make members of the Supreme Court subject to periodic judicial retention elections as a very real check.

Cruz’ number one option has exactly zero traction. This is a loser of an idea, as has been demonstrated in the US Senate. Never has an anti-gay marriage amendment garnered more than 48 votes, nowhere near the supermajority of 67 needed to pass. And that was before a number of Republican Senators began endorsing marriage equality.

Cruz’ second step similarly has zero chance of passage. Congress is not going to pull determination about the constitutionality of marriage bans from the federal court system. Such a step, supposing it had any support, would weaken the nation’s trust in our political system and leave the country uncertain as to whether there was any governmental branch to which they could turn to resolve grievances.

Even if by some bizarre chance it were to pass, no President of any party would sign such a bill. No one wants their legacy to be the dismantling of the system of checks and balances.

Finally, Cruz’ third solution is a frightening one. Most reasonable people – even non-political people – recognize that having the judicial review of a law’s constitutionality tied to political whim is a horrible idea. It is the longevity of judicial thought that overlaps administrations and shifts in ideology that protects the nation from despotism.

And further, his idea is founded in delusion. Coming from Texas, Cruz imagines that the views of his bubba buddies reflects the national opinion. He dreams that if only the Justices were subjected to a national plebiscite, then the people would throw out the Supremes who found that the Constitution requires equal treatment under the law and replace them with justices who would reinstate anti-gay marriage law.

He presents this example to support that pipe dream.

CRUZ: It’s worth remembering just a few years ago, the Windsor decision from the Supreme Court. It struck down a referendum that the people of California — now, California is not a conservative state. It is not a red state. California’s a bright, bright blue state. And yet when California put a referendum, just a few years ago, on about the ballot about whether marriage should remain the union of one man and one woman, a majority of Californians voted to preserve traditional marriage.

And then…

INSKEEP: But you don’t think that that vote would — would be different today, given the change in polls in the last several years?

CRUZ: It may well, or it may not. That was just a few years ago.

Ummm… that’s insane.

First off, Windsor did not strike down a referendum of the people of California. That was Hollingsworth v Perry, in which the Ninth Circuit struck down Proposition 8, and the Supreme Court found that the case was moot because after the state pulled its defense of the law, no one had standing to defend it. Windsor found that the federal government had to recognize the marriage of Edie Windsor and Thea Spyer, which had been legally conducted in Canada and was recognized under the laws of New York State as passed by the legislature.

But irrespective of Cruz’ lack of basic facts, he’s also completely wrong about public opinion. Polling on marriage equality in California shows that marriage equality has two-thirds favor. There’s no “it may not” possibility.

Similarly national polling has marriage leading holding support somewhere in the mid 50’s to opposition in the high 30’s. Even were the nation to toss out our long judicial history for Ted Cruz’ craziness, voters almost without exception vote for retention of judges. Even controversial judges. There is no way that the nation would vote out judges because they supported equality.

Which leads me to believe that Ted Cruz is not serious about Presidential aspirations. He’s not saying things that push one down the path to Presidency. Wacko statements like these do not cause donors to support you, papers to endorse you, or fellow politicians to bring their political machine to your service.

They do, however, get media attention and raise your profile in right-wing media. They do fire up the uninformed and earn the adoration of the single minded. As does a “campaign” designed not to win votes but to showcase image.

And, as it turns out, Ted Cruz has a book to sell, A Time For Truth. In the short NPR interview, he manages to mention or reference his book 22 times.

Ted Cruz is not running for President. Ted Cruz is selling a book.

[Updated to correct Cruz’ inaccuracies about Windsor]

John K.

June 30th, 2015

“There is no way that the nation would vote out judges because they supported equality.”

It was reported that over $1 million in out-of-state money resulted in dismissal of 3 Iowa supreme court justices after the Iowa marriage decision.

The recent cries to change the judicial system into another political popularity contest are a bit worrisome nonetheless.






June 30th, 2015

“It’s worth remembering just a few years ago, the Windsor decision from the Supreme Court. It struck down a referendum that the people of California”

Um. No, it didn’t. Windsor struck down Section 3 of DOMA, which was a law passed by Congress, and had no ties to California at all. Hollingsworth v Perry was the decision on Prop 8, and it was dismissed for lack of standing, so SCOTUS didn’t actually rule on the merits (though it did let a lower court ruling on the merits stand, so it is a bit of a distinction without a difference.) But you would think a politician who wants to talk authoritatively on these things might want to use correct information. But then, look who I’m talking about…never mind…

Timothy Kincaid

June 30th, 2015

Thank you Emcee… great catch. I’ll revise above to point that out.

Rob in San Diego

June 30th, 2015

By Cruz’s logic then, that would mean that only Hobby Lobby can force their religious views on their employees since they were the only parties in the Supreme Court case.


June 30th, 2015

I suppose,

The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

he might’ve read the decision before issuing public comment.

Nah, what the Hell. Who cares about reality?


July 1st, 2015

The entire clownfest on the GOP side is about selling brands. There is absolutely no risk involved. People pay money to get publicity. In the worst-case scenario, if you spend more than you take in, your campaign entity declares bankruptcy and shoves your hard-working staffers to go unpaid. The perfect Republican version of the “free market”…

Is there a single human being on the planet–including the candidates themselves–who thinks that Jindal, Perry, Christie, Trump, Huckabee, Fiorina, Pataki, Rubio, Cruz, Paul, Santorum, and Carson have even a 0.000000001% chance of ever being President (or even being the Republican Nominee)????

Bush and Walker will vie depending on whether Walker’s puppet-masters can out-maneuver the “Powers That Be” behind the scenes.

Everyone else is in it for the attention.

Timothy Kincaid

July 1st, 2015


Side note: In bankruptcy, employees usually are paid. They are in line ahead of landlords, printers, phone companies, advertising agencies, etc.

But yes, the rest are in either to get image, publicity, and a gig on Fox News or else to flavor the debate and draw attention to issues they care about.

Maurice Lacunza

July 1st, 2015

You should have titled this article, “Ted Cruz Goes On Air to Sell Book.”

Sometimes I worry that folks like Cruz and Huckabee might gain traction. And then the logical side of me says, no way these guys are gonna make it.

Then why do these guys all wanna run for President? And I think the answer is money in their PACS, publicity for hawking goods and narcissistic gratification as a bonus. Otherwise, my jaw drops whenever I have to hear them speak. I will be glad when they all go away for good. Great Article by the way.


July 1st, 2015

Timothy, there have been a few instances where campaign workers went unpaid. I believe Bachmann stiffed her people–one of the reasons they trashed her in 2012.


July 1st, 2015

Here are two examples:




July 1st, 2015

Politics is showbiz for ugly people.

“Ugly” in this case means “average-looking” non-Hollywood-grade appearance. Modern politics requires a somewhat narcissistic personality.

Timothy Kincaid

July 1st, 2015

Matt, I’m speaking specifically to bankruptcy. I don’t think that this is the case in either example. As for politicians not paying their staff… that’s pretty crappy!


July 1st, 2015

Sorry, I didn’t mean it that literally, Mr. CPA :) I am not entirely sure that a campaign committee can legally declare bankruptcy.

That said, if ANYONE can find a way, Trump will. He’s made a career of profiting from his terrible business decisions. The miracle of OPM (other people’s money)!


July 2nd, 2015

Remember W was sent to the oval office 2 times. Anything is possible.
No one ever went broke underestimating the intelligence of the American public. – H. L. Mencken


July 3rd, 2015

The conspiracy theorist in me wants to wonder if Cruz and the other GOP loons are meant to make Jeb or someone else seem gourmet by comparison – what teen girls do now with the having uglier friends in their pictures so they look model-beautiful. Of course, a more serious part of me sees enough ignorant voters who can get riled up over BS, and drawn to the polls to give a victory to the least worthy candidate. We shouldn’t dismiss Cruz or anybody else entirely, and be sure to vote, not just in the main election, but also in the primaries.

Dave H

July 4th, 2015

Presidential candidates releasing books in conjunction with their run for president is actually pretty common. Barack Obama, Hillary Clinton, John McCain, and Mike Huckabee have all done it, and I’m sure others I can’t recall off the top of my head have, too.

The book is an attempt to not only communicate their principles and beliefs, but also to allow the public to get to know them as people and hopefully cultivate a sympathetic impression.

I think Ted Cruz most definitely wants to be President. The book exists as a tool to serve that end. He is monumentally egotistical, and he is so clueless and detached that he truly believes that most of America believes what he believes. He thinks he is America’s savior.

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