Can Ted Cruz Make Marriage an Issue for the States?

Posted  by: Priscilla Chang, Christopher Channell, Danny Chrisney, Alex Christensen, Dani Chronister, Cameron Collins, Lane Conrad, John D’Amico

640px-Senator_of_Texas_Ted_Cruz_at_New_England_College_Town_Hall_Meeting_on_Feb_3rd,_2016_a_by_Michael_Vadon_11During presidential candidate Ted Cruz’s time on the campaign trail, he has proposed two reactions to the United States Supreme Court Decision in Obergefell v. Hodges, which upheld same-sex marriage. First, Senator Cruz has said that he would introduce a federal constitutional amendment that would allow the states to limit marriage to one man and one woman. Second, Senator Cruz has said that he would introduce Congressional legislation to strip the federal courts of jurisdiction over marriage equality cases.

Senator Cruz is a staunch proponent of traditional marriage and says that his ultimate goal is to give the individual states authority to define marriage without intervention from the federal courts. If successful, the senator’s proposals would accomplish the results that he is advancing. However, there have been serious questions about the legality of his proposals.

        A constitutional amendment that allowed states to define marriage would be legal. However, given today’s political climate and the nationwide increase in support for same-sex marriage, it is very unlikely that such a constitutional amendment would be passed with the required votes.

             The real question of legality arises when we address Senator Cruz’s proposed congressional legislation to strip the Supreme Court of jurisdiction over marriage cases. He bases his plan on a Discretionary Jurisdiction theory of the Constitution’s Exceptions Clause. However, based on an Originalist view and Mandatory Jurisdiction theories, Cruz’s legislation would be illegal. There are currently several different theories and approaches addressing congressional power to take away jurisdiction from the Supreme Court that date back to cases like Ex Parte McCardle and Klein v. United States. The Mandatory Jurisdiction theories argue that Congress cannot make exceptions to the Supreme Court’s appellate jurisdiction.

             In addressing these issues we will first look to the history of same-sex marriage in the United States and the effect of Obergefell v. Hodges on today’s political climate. Second, we will examine Cruz’s proposal for a constitutional amendment and the difficulties he would face in getting that amendment approved. Finally, we will look at why the proposed legislation to strip the Supreme Court of jurisdiction over marriage cases is illegal.

History of Marriage

In 2015, the Obergefell v. Hodges case was decided and changed the way that we as nation define the institution of marriage. The Supreme Court held that same-sex couples may now exercise the fundamental right to marriage. Additionally, the state laws challenged by the petitioners in these cases are invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples. Here, the plaintiff James Obergefell and Arthur Hodges married in Maryland and moved back to Ohio. Arthur Hodges had ALS and after he passed away the State of Ohio refused to acknowledge Obergefell as his surviving spouse because they did not recognize same-sex marriage. Obergefell filed a claim stating this was a violation of his 14th Amendment rights by denying him the right to marry or to have their marriages lawfully performed in another state, then deny full recognition.

The Court highlights that until the mid-twentieth century our nation viewed homosexuality as immoral and our nation’s criminal statutes reflected that view. However, this sentiment began to slowly change and evolve. In Romer v. Evans, the Court invalidated an amendment to Colorado’s Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. In Goodridge v. Dept. of Public Health, Supreme Judicial Court of Massachusetts held that the State’s Constitution guaranteed same-sex couples the right to marry. Finally, in United States v. Windsor, the Supreme Court invalidated the Defense of Marriage Act to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where they were licensed.

After briefly outlining the history of marriage and the evolving views on homosexuality, the Court then focused its opinion on both the Due Process and Equal Protection Clauses. The Court concedes that the right to get married is not an enumerated fundamental right. However, that the Court is able to exercise reasoned judgments in identifying interests of the people so fundamental that the state must accord them its respect. Further, the majority held that the generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom in all of its dimensions. Also, that the founding fathers entrusted to future generations a charter protecting the rights of all persons to enjoy liberty as we learn its meaning. The Court then identified three cases, which demonstrates that the Constitution protects the right to get married. In Loving v. Virginia, the court invalidated bans on interracial unions. In Zablocki v. Redhail, the state’s law infringed on the right to get married by prohibiting fathers who were behind on their child support payments from their marriages. Finally, in Turner v. Safley, the court held that regulations limiting the privilege of prison inmates to marry infringed on their fundamental right to marriage.

The Court then outlined the four basic reasons why the right to get married is protected by the Constitution. First, the Court’s relevant precedents demonstrate that the right to personal choice regarding marriage is inherent in the concept of personal autonomy. Second, the right to marry is fundamental because it supports a two-person union unlike any other, in its importance to the committed individuals. The Court highlighted specifically, that marriage is a right older than the Bill of Rights. Third, it safeguards children and families and thus, draws meaning from related rights of childbearing, procreation, and education. The court notes that excluding same-sex couples from the right to marry could have detrimental effects on their children. For example, a child might view themselves as lesser individuals if the eyes of the law views his or her parents as lesser individuals. Finally, the Court discussed how both the Court’s cases and the nation’s traditions make it clear that marriage is a keystone of our social order. The Court discussed how our nation’s history allowed marriage to be a basis for expanding governmental rights, benefits and responsibilities, and by excluding same-sex couples from marriage essentially denies these benefits. In conclusion, the Court also discussed denying same-sex couples the right to marry violates the Fourteenth Amendment’s Equal Protection Clause. In particular, the Equal Protection Clause can help recognize and repair inequalities in the institution of marriage. Noting that although the limitation of marriage to opposite sex couples once seemed natural, it is now inconsistent with the central meaning of the fundamental right to marry.

SCOTUS_Marriage_Equality_2015_(Obergefell_v._Hodges)_-_26_June_2015        The decision in Obergefell v. Hodges was highly contested and led to four Supreme Court Justices writing separate dissents. In Justice Kennedy’s dissent, he discusses how the right to marry is not an enumerated right, and there must be a need for judicial restraint. He describes how “Five Lawyers” have closed the debate on what constitutes a marriage and enacted their own vision as a matter of constitutional law. Justice Scalia echoed that point and went further by arguing that this decision gave too much power to the judicial branch. Further, that this deprived the people of the most important liberty in the Declaration of Independence, which is the liberty to govern themselves. In Justice Thomas’s dissent, he distinguished the interpretation of liberty. He wrote that the American Legal Tradition has interpreted liberty to mean individual freedom from governmental actions instead of receiving particular governmental entitlements. Finally, in Justice Alito’s dissent, he believed that this was an issue that the Constitution has designated to the states to decide.

Federal Constitutional Amendment

Cruz’s proposal for a federal constitutional amendment to reverse the holding in Obergefell v. Hodges would be a lawful endeavor. Cruz introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage and to prevent the federal government or the courts from attacking or striking down state marriage laws. Though his proposal to amend the constitution would be lawful, it would be a laborious obstacle.

Historically, there have been only 5 or 6 successful amendments to overturn Supreme Court decisions. The 11th Amendment, the first constitutional amendment adopted after the Bill of Rights, was passed to reverse Chisolm v. Georgia. In Chisolm, the Supreme Court ruled that Article 3, Sec. 2 gave federal courts power over controversies between a state and citizens of another state, even without the consent of the state being sued. The 11th Amendment was passed by Congress in March 1794 and was ratified by the states in February 1795.

In Dred Scott v. Sanford, the Supreme Court ruled that Congress had no power to prohibit slavery in the territories, essentially holding that the Missouri Compromise was unconstitutional. In Dred Scott, three justices held that people of African descent whose ancestors were sold as slaves, whether they were still slaves or were free, could not be deemed citizens of the United States. Following the conclusion of the Civil War and passage of the 13th Amendment abolishing slavery, the 14th Amendment was proposed in 1866 and ratified in 1868.

In 1909, the 16th Amendment was proposed by Congress to reverse the Supreme Court’s decision in Pollock v Farmers’ Loan and Trust, ruling that an income tax was unconstitutional. The 16th Amendment was ratified in 1913. The 19th Amendment, which granted women the right to vote, reversed several Supreme Court decisions including Minor v. Happersett, which held that women did not have a constitutional right to vote. The 26th Amendment, authorizing the right to vote for 18-21 year-olds, reversed the Supreme Court ruling in Oregon v. Mitchell holding that Congress had the authority to permit 18-year-old citizens to vote in national elections, but that it did not have authority to set the voting age in state elections. In opposition to the Court’s ruling, Congress determined that the holding denied members of that age group equal protection and due process rights and proposed the 26th Amendment in March of 1971. The amendment was ratified in June 1971. The 27th Amendment, though not expressly proposed with the agenda to overturn a Supreme Court decision, was proposed with the original Bill of Rights in 1789. Our most recent amendment to the Constitution was not ratified until 1992 – 203 years after being proposed.

In contrast to these seemingly few successful attempts to amend the Constitution based on the Supreme Court’s ruling, there have been countless proposed amendments that have failed to be passed. In the landmark Roe v. Wade case, the Court upheld a woman’s right to an elective abortion during the first trimester of her pregnancy. Since 1973, a steady stream of political discussion and controversy continues to bring the Court’s holding in Roe v. Wade to center stage as powerful pro-life groups have unsuccessfully lobbied to pass a right-to-life amendment.

The next question is whether or not the proposed amendment is likely to be successfully added to the Constitution. To amend the Constitution with powers granted by Article 5 in the manner Cruz proposes, there must be a 2/3 majority vote in both the House of Representatives and the Senate. Then 38 of the 50 states must ratify the amendment for it to become an official part of the Constitution. Even for non-controversial issues, this is an arduous process, involving consensus by extraordinary majorities. The difficulty is evidenced by the mere 27 amendments successfully ratified in the history of the Constitution.

One of the difficulties in passing Cruz’s suggested amendment is the general lack of consensus both between people and states on same-sex marriage as an issue. Prior to the Supreme Court ruling in 2015, eight states had legalized gay marriage by state legislature, 3 states had legalized same-sex marriage by popular vote, and only 13 states remained with same-sex marriage entirely banned. This demonstrates the high level of controversy on the issue. Furthermore, national polls of public opinions in 2015 indicate approximately 59% to 60% of the population was in favor of same-sex marriage legality. These trends indicate both a lack of the necessary extreme consensus for either side but also a general trend opposing Cruz’s stance on marriage.

Previous attempts at similar bills may point to the likelihood of Cruz’s success in his planned proposal as well. In 2005-2006, during the 109th Congress, when opposition to same-sex marriage was stronger, a Marriage Protection Amendment was proposed to limit marriage to one man and one woman but failed in Senate. The lack of success of the Marriage Protection Amendment coupled with growing public opinion in favor of same-sex marriage seem to be predict lack of lack of success in reaching consensus on future proposals regarding the issue. Ultimately, given the difficulty of the process and today’s political climate, it seems unlikely Cruz’s proposed amendment will be ratified.  

Stripping Jurisdiction

Ted Cruz has proposed passing legislation to strip the federal courts of jurisdiction over the issue of restricting marriage to between solely a man and woman. It is likely that this proposal is unlawful. We posit that, in addressing this issue, the optimal approach would be to use an originalist examination of the Constitution. This encompasses both an originalist textual inspection of the document, as well as an originalist historical approach, which allows for the understanding of the text through its drafting.

One of the original primary intentions of the Constitution was to allow for judicial review. The Philadelphia Convention outlined the concept of judicial review by the Supreme Court. Much of our knowledge comes from the Federalist Papers, which allow us valuable insight into the minds of the Founders during their meticulous construction of the Constitution. Federalist No. 78, authored by Alexander Hamilton, solidifies the notion that the Framers of the Constitution held judicial review in very high regard, as something that should not be overly controlled by the legislative branch. Further, Federalist No. 78 focused on how judicial review should not be something that is feared, but rather embraced, due to the nature of the separation of powers and the reliance on the executive and legislative branches to enforce their judgments (through the powers of force and will).

Examining the drafting history of the Constitution even further, Federalist No. 51 reinforces the concept that judicial review was shaped with the intention to create a law immune from politics that fits within a system intended to protect both the public good and private rights from the perceived majoritarian excesses. Maintaining Supreme Court jurisdiction was one of the major original intentions of the Constitution in an effort maintain a proper separation of powers. Original jurisdiction, which is mandatory cannot be limited by Congress and is granted to the federal courts by Article 3, section 1. However, judicial review finds its home in Article 3, section 2. There have been several very notable cases that have taken an in depth look at the precise wording of this section, yielding multiple interpretations.

It is likely that Cruz will rely on an opinion from Ex Parte McCardle, which specifically identified the wording of “regulations and exceptions” used in Article 3, Section 2 of the Constitution. The manner in which the the opinion quoted the Constitution in this case allowed for Congress to have a significant amount of leeway in limiting jurisdiction of the federal courts. However, Justice Chase misquoted the Constitution in his opinion, omitting a crucial comma, which changes the interpretation of the document. The proper reading of the sentence in question is: “In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such regulation as the Congress shall make.” With the comma included the reading of the document changes, in that now Congressional power is limited to monitoring regulations, no longer including exceptions. Now that we have reconciled this crucial grammatical error, we can dive further into this originalist textual interpretation of this section of the Constitution.

The “regulations” under which Congress is able to regulate appellate jurisdiction are solely procedural. When taking a mandatory reading of Article 3, “shall be vested,” means that federal jurisdiction cannot be taken away. Using an interpretivist view, it is best to look at Article 3 in view of the whole document rather than in isolation, which is important because the use of the word “shall” throughout the document has been construed as the meaning “always.” By our interpretation, the “exceptions” to which the Supreme Court does not have appellate jurisdiction is when Congress has created lower federal courts. This is important because in the instance where Congress has created a lower federal court, there would still be federal appellate review, but simply not with the Supreme Court. Rather than it being a single clause of “exceptions and regulations,” Article 3, Section 2 could likely be interpreted as two separate clauses: one denoting exceptions, and denoting for regulations as made by Congress.

Ted Cruz would likely use a discretionary jurisdiction theory to interpret this sentence from Article 3, Section 2, referenced in McCardle, which would permit Congress oversight over both exceptions and regulations for limiting appellate jurisdiction of the federal courts. However, an originalist approach to the textual reading of the document, when including the comma, and the history of drafting of the document leans in favor of the mandatory interpretation of this section. There is an intrinsic danger to using plain language interpretations and refusing to look at constitutional history.

Allowing this legislation to pass would be an invasion of judiciary powers because it would be a means to an end, which is not permissible by the precedent established in Klein. It is important to recognize that there is a constitutional limitation on Congress’s ability to limit jurisdiction of the federal courts. A policy concern in this matter would be maintaining uniformity of the law. Uniformity would be especially important in this regard because allowing for multiple state interpretations of the legality of limiting a marriage to solely between a man and woman could cause significant political uproar. In the case of Bush v. Boudemine, the Court held that the proposed jurisdictional stripping statute was not allowed under Article 1, Section 9. Relating to the issue in front of us, in examining Boudemine, it should be highlighted that it is unconstitutional to strip jurisdiction from all federal courts. Congress has the authority to choose which federal court hears the issue, but they cannot choose whether a federal court has jurisdiction to hear the issue or not.

Even if Cruz’s proposed legislation to strip jurisdiction from the federal courts was lawful, it would not accomplish what he is contending. State courts are bound by United States Supreme Court decisions, so regardless of jurisdiction, Obergefell v. Hodges has already been decided and state courts would be required to uphold the decision. To those in favor of Cruz’s proposal, it may seem that if jurisdiction is removed from the federal courts and given to the state courts that his agenda would be furthered. However, that is not the case.


US_Senator_of_Texas_Ted_Cruz_at_CPAC_2015_by_Michael_S._Vadon_09The Supreme Court’s decision in Obergefell v. Hodges forever changed the debate on same-sex marriage, and additionally, the political landscape. As people’s values and views change, so do the laws of the land. In essence, Obergefell v. Hodges represents not only the right for same-sex couples to marry, but the culmination of years of judicial decisions that slowly opened the way for the Supreme Court to rule as they did. The founding fathers did not intend for the Constitution and the Bill of Rights to be rigid documents, forever ruling over the people of this country, but rather a framework to build upon all future rights and liberties.

While Senator Cruz’s proposed legislation to amend the Constitution would be completely lawful, the current political climate would have to undergo a radical ideological shift to allow it to be passed with the required a vote. It is his proposal to strip away the jurisdiction of the federal courts that is not congruent with the spirit or the letter of the law. The concept of judicial review was present in the minds of the Framers, as we see in Federalist No. 78. Under the originalist view of the Constitution and considering the context and history of the document, Article 3 must be interpreted under the mandatory interpretation theory. Cruz’s reliance on McCardle would be reliance on a misquotation of the very document he purports to be protecting.

The Obergefell v. Hodges and the controversy that followed highlighted a deep divide in how different groups interpret the Constitution of the United States. If Senator Cruz would be allowed to remove jurisdiction from the Supreme Court, the separation of powers with this nation would be disrupted, and the United States would be moving away from the pattern and vision the Founding Fathers and Framers of the Constitution gave us. The Constitution is the product of history, and by ignoring the historical, linguistic and political context present during the framing, much of its intended meaning is lost.

Can Ted Cruz Make Marriage an Issue for the States?