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Tuesday, October 7, 2014

Did Ted Cruz Admit that a Constitutional Amendment is Needed to Preserve Same-Sex Marraige Bans?

From Josh Blackman's Blog, I learned that Senator Ted Cruz has made a strong statement against the Supreme Court's refusal to address a number of appellate opinions holding state bans on same-sex marriage unconstitutional.

Cruz's reaction condemns the Supreme Court's "extremely broad interpretation" of the Fourteenth Amendment. He goes on to say:

Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts. 
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. 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.
Cruz's language is not particularly surprising in light of the rapidly approaching primary season. Speaking out against same-sex marriage, while simultaneously criticizing "judicial activism at its worst" is likely to energize conservatives.

But Cruz's statement also illustrates the magnitude of the momentum behind the push for the legalization of same-sex marriage. Cruz certainly devotes much of his statement to arguing against striking down same-sex marriage bans on constitutional grounds. But by focusing on a constitutional amendment as the avenue for preserving same-sex marriage prohibition, Cruz seems to be admitting that defending the constitutionality of same-sex marriage bans is no longer a feasible prospect.

Cruz may well pursue his amendment, and it may win him some votes down the road. But ultimately, the admission that same-sex marriage bans will almost inevitably fail judicial scrutiny is the most important takeaway from Cruz's statement.

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