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The facts are pretty straightforward. Cruz’s stance is that, as President, he would work to pass a modified version of the older Federal Marriage Amendment (“FMA”) idea. I say “modified” because Cruz’s amendment is a strictly federalist provision that would simply overturn the constitutional travesty that was last term’s Obergefell v. Hodges Supreme Court decision and return to the status quo ante of each sovereign State determining its own marriage policy for itself. The more traditional FMA would be the one that Republicans ran on nationally as recently as Mitt Romney in 2012, which would have constitutionalized the definition of marriage nationally as the union of one man and one woman. Before dropping out this cycle, Rick Santorum—who, as the Big-Government conservative he is, remains a supporter of the older FMA—used this difference to attack Cruz as being insufficiently strong on the issue. I suppose there is still an argument for that stance, but in a post-U.S. v. Windsor (the 2013 Supreme Court case striking down the section of the federal Defense of Marriage Act that defined marriage, for purposes of federal law, as the union of one man and one woman) and, especially, in a post-Obergefell world, I think Cruz’s stance is much preferable. It was definitely good enough for the National Organization for Marriage, in any event, when they decided to endorse Cruz’s presidential bid.
By contrast, Rubio has repeatedly eschewed the strategy of pursuing a constitutional amendment to overturn Obergefell, instead relying on the talking point that he would appoint sound originalist jurists to the Supreme Court who would eventually overturn it in a future opinion. He reiterated that talking point this weekend on the Sunday talk shows. While I have little doubt of Rubio’s personal belief in the underlying policy merits of the traditional definition of marriage, his is a more mild procedural stance that should be entirely fair game to question in the context of a presidential race. Not only is this fair game, moreover, but I would argue Rubio’s stance is historically out of line with mainstream American thinking on using the Constitution’s Article V amendment process to overturn errant Supreme Court rulings. The 1795 ratification of the Eleventh Amendment, which was initiated in Congress as a direct response to what Congress viewed as the grievously wrongly decided Chisholm v. Georgia Supreme Court decision of 1793, is a testament to this enduring line of thought. Based on his articulated logic today that the constitutional amendment process should not be used to overturn judicial decisions, Rubio would not have supported the adoption of the Eleventh Amendment.
But that is actually only the surface level distinction here between the two men. There is a deeper disagreement here about the role of the federal judiciary in our lives. Rubio’s initial statement following Obergefell was, in relevant part, “While I disagree with this decision, we live in a republic and must abide by the law.” (He has since tried to walk this back a bit, to be fair, it should be noted.) This statement, combined with his judicial nominations-only stance on how to grapple with Obergefell, may reasonably be interpreted as indicating some degree of belief in the fallacious doctrine of judicial supremacy—the idea that the federal judiciary’s pronouncements on constitutional questions strictly bind the other two branches, such that a President and a Congress must faithfully execute their duties in accordance with the constitutional prognostications of what Alexander Hamilton nonetheless once referred to as the “least dangerous” branch.
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With Justice Scalia’s tragic and untimely passing thrusting the issue of judicial nominations very much into the middle of an already-hectic presidential election, the candidates’ legal philosophies and approaches to foundational questions about constitutional structure matter. Here is hoping the voters are paying attention.
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