For more than a decade I’ve been pointing out that the term “judicial activism” is a meaningless catchphrase used whenever someone disagrees with a court ruling. Ted Cruz proves me right by using it to describe the Supreme Court’s lack of action in the state marriage equality cases.
“The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible,” said Sen. Cruz. “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.
“This is 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. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.
So let me see if I have this straight. It’s “judicial activism” when the court takes no action at all? And it’s “astonishing” that the Supreme Court didn’t provide an explanation for why they didn’t grant cert when, in fact, they never explain why they deny a petition? And it’s totally wrong “unelected judges” to overturn the “considered judgments of democratically elected legislatures” — except, of course, when it comes to the Voting Rights Act, the Affordable Care Act, the McCain-Feingold law and any other law Cruz dislikes. Got that?
“The Supreme Court is, de facto, applying an extremely broad interpretation to the 14th Amendment without saying a word – an action that is likely to have far-reaching consequences. Because of the Court’s decision today, 11 States will likely now be forced to legalize same-sex marriage: Virginia, Indiana, Wisconsin, Oklahoma, Utah, North Carolina, South Carolina, West Virginia, Kansas, Colorado, and Wyoming. And this action paves the way for laws prohibiting same-sex marriage to be overturned in any state.“It is beyond dispute that when the 14th Amendment was adopted 146 years ago, as a necessary post-Civil War era reform, it was not imagined to also mandate same-sex marriage, but that is what the Supreme Court is implying today. The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment.
“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.”
Every single thing in those few paragraphs applies equally well to state laws banning interracial marriage. The 14th Amendment was sold to the public because the framers of that amendment explicitly said that it would not overturn laws against interracial marriage. And if it’s a question for the states, it must be tyranny for the Supreme Court to have struck down such laws on equal protection grounds in 1967, right? But of course, Cruz would never admit that because he knows that’s wildly unpopular. Because he isn’t making a serious argument, he’s engaged in special pleading, applying his own reasoning only when it leads to the results he favors and ignoring it when it doesn’t.