WASHINGTON (CBSDC/AP) — Sen. Ted Cruz plans on introducing a constitutional amendment to prevent the federal government or courts from striking down state marriage laws after the Supreme Court unexpectedly cleared the way for a dramatic expansion of gay marriage in the United States.
In a statement following the Supreme Court’s decision to reject appeals from five states seeking to preserve their gay marriage bans, the potential 2016 presidential contender called it “indefensible.”
“The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible,” Cruz said. “By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing.”
The Supreme Court effectively made such marriages legal in 30 states after rejecting the appeals, up from 19 and the District of Columbia, taking in every region of the country.
Challenges are pending in the other 20 states.
Cruz called it “judicial activism at its worst.”
“The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens,” Cruz said in a statement. “Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.”
Cruz explained that the Constitution needs to be amended to keep courts or the federal government from striking down state marriage laws.
“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,” Cruz said. “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.”
The Texas senator continued: “Traditional marriage is an institution whose integrity and vitality are critical to the health of any society. We should remain faithful to our moral heritage and never hesitate to defend it.”
Directly affected by Monday’s orders were Wisconsin, Indiana, Oklahoma, Utah and Virginia. Officials in those states had appealed lower court rulings in an effort to preserve their bans. Couples in six other states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — should be able to get married in short order since those states would be bound by the same appellate rulings that have been on hold.
While county clerks in a number of states quickly began issuing licenses to gay and lesbian couples, in some other states affected by the court’s action officials did not sound ready to give up the fight. However, their legal options are limited.
Monday’s terse orders from the court were contained among more than 1,500 rejected appeals that had piled up over the summer. The outcome was not what either side expected or wanted. Both gay marriage supporters and opponents had asked the court to resolve whether the Constitution grants same-sex couples the right to marry nationwide.
The justices did not explain why they decided to leave that question unanswered for now. They may be waiting for a federal appeals court to break ranks with other appellate panels and uphold state laws defining marriage as between a man and a woman. Or they may see little role for themselves as one court after another strikes down state marriage bans.
Still, the import seemed clear. What the justices did in virtual silence Monday “has to send a signal to the other courts of appeals that the Supreme Court does not think it’s so wrong to allow same-sex couples to marry, and that even conservative justices don’t think they have a good shot at getting five votes. And that sends a message that this essentially is over,” said Jon Davidson, legal director of Lambda Legal, an advocacy group for gay rights.
Leaders of the National Organization for Marriage predicted a backlash in the form of renewed efforts to pass a constitutional amendment defining marriage as the union of a man and a woman.
“The notion that the people have nothing to say about this — that unelected judges are going to decide it for us — that’s preposterous,” said John Eastman, the organization’s chairman.
However, efforts to pass such an amendment have gained little traction, even in past years when support for same-sex marriage was less robust. NOM’s president, Brian Brown, acknowledged that any renewed efforts would be “long and arduous.”
The politics of gay marriage have shifted in the past decade. In 2004, it was a wedge issue: Republicans looking to boost turnout in the presidential election put questions of banning gay marriage before voters in nearly a dozen states.
Ten years later, there are openly gay members of both the U.S. Senate and House. And two openly gay Republicans — Massachusetts’ Richard Tisei and California’s Carl DeMaio — are running for House seats.
Two other appeals courts, in Cincinnati and San Francisco, could issue decisions any time in same-sex marriage cases. Judges in the Cincinnati-based 6th Circuit who are weighing pro-gay marriage rulings in Kentucky, Michigan, Ohio and Tennessee, appeared more likely to rule in favor of state bans than did the 9th Circuit judges in San Francisco, who are considering Idaho and Nevada restrictions on marriage.
It takes just four of the nine justices to vote to hear a case, but it takes a majority of at least five for an eventual ruling. Monday’s opaque order did not indicate how the justices voted on whether to hear the appeals.
With four justices each in the liberal and conservative camps and Justice Anthony Kennedy more or less in the middle, it appeared that neither side of the court wanted to take up the issue now. It also may be that Kennedy, with his likely decisive vote, did not want to rule on same-sex marriage now.
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