Ted Cruz and States' Rights

Ted Cruz participated in a Good Morning America Town Hall, during which he answered questions posed by voters. Todd Calogne, a pizza parlor owner in New York City, asks Cruz what he would do to protect Todd and his husband of two years from religious freedom laws that he referred to as "institutionalized discrimination." Cruz answers in the video below:

In his response, Cruz makes some interesting generalizations, in an effort to avoid directly addressing what Mr. Calogne asked:

"When it comes to religious liberty, religious liberty is something that protects all of us; it applies to Christians, it applies to Jews, it applies to Muslims, it applies to atheists... that freedom ultimately protects each and every one of us."

Robin Roberts followed by asking, "doesn't everyone have the freedom to be treated equally...?," clearly implying that Cruz's response didn't really address what Mr. Calogne asked. Cruz sidestepped it once again, and reiterated the same answer, that the "First Amendment protects everyone equally..." George Stephanopoulos then redirects Cruz to his support of creating a constitutional amendment to overturn the Supreme Court decision on gay marriage [Obergefell v. Hodges], and how that would affect couples like Mr. Calogne and his husband, who already married:

"Listen, I am a constitutionalist and, under the Consitution, marriage is a question for the states - that has been the case from the very beginning of this country, that it's been up to the states. And so if someone wants to change the marriage laws, I don't think it should be five unelected lawyers down in Washington dictating that, and even if you happen to agree with that particular decision, why would you want to hand over every important public policy issue to five unelected lawyers who aren't accountable to you, who don't work for you...

and by the way, it may end up... that the laws in one state may be different than another state, and we expect that... and that's the great thing about a big diverse country, is that we can have different laws that respect different values."

There is a whole lot wrong with this line of thinking. For starters, I'm not sure Cruz should be touting himself a "constitutionalist," when it does not appear that he knows that the Constitution says nothing whatsoever about marriage. DOMA, however, was a federal law. DOMA prevented federal benefits to same sex couples living in states that had legalized same sex marriage. But what about states' rights? Not so much. Cruz supported DOMA, much as he supports states' rights, so long as the state decisions are in line with what he wants. And he was none to pleased when SCOTUS ruled that Section 3 of DOMA was unconstitutional under the due process clause of the Fifth Amendment. The most recent ruling was based on the Fourteenth Amendment. The Fourteenth Amendment was written in regards to the rights of all citizens of the United States. Article 1 of the Fourteenth Amendment states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This is what the Supreme Court was deciding on. And while some may think the decision is tantamount to the SCOTUS saying the Fourteenth Amendment requires the states to redefine marriage, it does no such thing. What they said, essentially, is if the states are going to "define" marriage at all, they cannot do so in any way that discriminates against anyone. As for Cruz's love for the First Amendment, the one condition to the First Amendment is that you cannot exercise your rights at the expense of someone else's. Using religious freedom to violate the equal rights of someone else also violates the spirit of the Constitution, not just the letter of it. Intent and effect are the barometers typically judged in these kinds of cases. Supporters of marriage definition, like DOMA, may claim that there is no intent to discriminate against homosexuals, but the effect was just that. And I would also argue that, since marriage is a universal construct that everyone accepts, the only reason to define it to any specificity at all is to disinclude those who do not meet the specificity defined, thereby demonstrating clear intent.

As for the "five lawyers in Washington," that is a wholly specious argument, coming from a candidate who touts his professional achievements in that very chamber. He's argued before the court nine times (two of them for one case), winning twice, partial victories in two more, and four losses. He has historically shown little respect for the SCOTUS, except when he needs them, as in the patent case for a private client in one of his two victories - BUT he wants us to elect him President because he should be the one to decide who to replace Antonin Scalia with. Right.