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What Ted Cruz Got Wrong About Gay Marriage And The Supreme Court

What Ted Cruz Got Wrong About Gay Marriage And The Supreme Court

Anticipating action by the Supreme Court's right-wing majority, Senator Ted Cruz last week said the 2015 Supreme Court decision that legalized same-sex marriage nationwide was “clearly wrong.”

Asked about the landmark case, Obergefell v. Hodges, in a video posted to YouTube from his podcast, he claimed, “Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history,” he claimed.

For many, his comments come as no surprise. In his concurring decision on Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas seemed to put a target on the landmark LGBTQ+ case, claiming that the court “should reconsider” its decision in Obergefell.

So Cruz’s comments seem to be merely doubling down on Clarence Thomas’ threat to same-sex marriage. “Marriage was always an issue that was left to the states,” said Cruz. He went further, saying that the Obergefell decision “was the court overreaching.”

But he’s wrong. The United States Congress has passed federal legislation regulating marriage previously, and the Supreme Court has decided cases enforcing those laws over the past “two centuries of our nation’s history.” As early as 1862, Congress passed the Morrill Anti-Bigamy Act, which prevented a person from being married to more than one individual at a time, later amended and strengthened by the Edmunds Anti-Polygamy Act 1882.

Both laws were later upheld by the Supreme Court in Reynolds v. United States (1879) and Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States (1890). Congress also passed the Defense of Marriage Act in 1996, defining a marriage as a union between one man and one woman, which was ultimately struck down by the Court’s decision in Obergefell.

The majority opinion in Obergefell largely rested on precedent from previous cases, including the seminal civil rights case Loving v. Virginia (1967), which struck down laws that made interracial marriage illegal. The court echoed the words of Loving in its opinion on Obergefell, claiming that marriage, and the freedom to choose one’s spouse, is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Consequently, the court concluded that “the right to marry is a fundamental right inherent in the liberty of the person, and…couples of the same-sex may not be deprived of that right and that liberty.”

Given the connection between the rights of interracial couples and same-sex to marry, Justice Thomas’ desire to revisit the court’s decision on Obergefell is odd. Would a reconsideration of the principles undergirding the Obergefell decision force the Court to reconsider its ruling in Loving? Given that Justice Thomas, only the second African American to serve on the Supreme Court, is married to a white woman, perhaps he should not throw stones.

To avoid directly stating his own aversion to same-sex relationships, Cruz instead complained that the Court prematurely truncated the democratic process. “Before Obergefell, some states were moving to allow gay marriage, other states were moving to allow civil partnerships. There were different standards that the states were adopting. And had the court not ruled in Obergefell, the democratic process would have continued to operate,” Cruz claimed. “In Obergefell, the court said, 'No, we know better than you guys do, and now every state must, sanction and permit gay marriage.'”

Cruz’s words are oddly reminiscent of the "moderates" in Martin Luther King’s Letter from Birmingham Jail, who urged civil rights activists to “wait” for more gradual change. Yet the Court anticipated and answered this objection in its decision. In his majority opinion for the Court, Justice Anthony Kennedy cited Schuette v. BAMN, noting that “when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decision-making. The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”

Perhaps Cruz and Thomas’ opposition to the expansion of human rights is not because of its timing, but because, as Dr. King observed, “privileged groups seldom give up their privileges voluntarily.”

Anthony Kennedy

Retired Justice Kennedy’s Son Helped Trump With Huge Deutsche Bank Loans

Reprinted with permission from Alternet

During Justice Anthony Kennedy's 31 years on the U.S. Supreme Court, liberals and progressives had a love/hate relationship with the Reagan appointee — praising him for his rulings on gay rights and abortion rights while slamming his economic rulings as beneficial to unchecked corporate power. And those who viewed Kennedy as being too quick to side with big business are likely to have similar views on his son, Justin Kennedy, who according to the New York Times, has been very close to Trumpworld and helped Donald Trump secure almost $700 million in loans for a real estate project in Chicago.

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This Supreme Court Disaster Didn’t Have To Happen

This Supreme Court Disaster Didn’t Have To Happen

What once may have sounded like a distant and wonkish abstraction —  namely, the nature of future nominees to the United States Supreme Court — is now upon us as a rapidly worsening catastrophe.

Within the past few days, owing to the seat stolen by Senate Republicans for Neil Gorsuch in 2017, the high court has upheld Donald Trump’s discriminatory travel ban, enabled the deception of desperate women by anti-choice “counseling clinics,” and inflicted a stunning blow from which the American labor movement may never recover.

And yesterday Justice Anthony Kennedy sent a letter to the White House announcing his plan to retire from the court on July 31, which will deliver another seat to a Trump appointee. What that might portend for civil liberties, human rights, consumer protection, industrial regulation, and decent government is difficult to contemplate. But suddenly the most outlandish dreams of the far right are much closer to being realized.

Despite his reputation as a “moderate,” Kennedy was in truth a very bad, mostly right-wing judge and a dim intellect, as his notoriously senseless Citizens United opinion proved. His record on the court was so bad, observes the astute judicial analyst Ian Millhiser, that even a Trump justice may not do much worse. Those who believed that Kennedy wouldn’t surrender his seat to this dangerous executive overestimated his character.

The endless reign of injustice that stretches before us is hardly what most Americans want or deserve, at least as measured by the 2016 election results. If that presidential election was “a referendum on the future of the court and thus the country,” as Trumpist pundit Hugh Hewitt crowed in The Washington Post, the Republicans lost by more than three million votes. And yet they won control of the high court and much of the judiciary for perhaps a generation to come.

As you imagine a nation without reproductive rights, voting protections, or environmental laws, are you looking for somebody to thank? It isn’t hard to compose a list of those responsible for the present disaster, from the ruin of the Supreme Court to the torment of children on our borders and a thousand other disasters large and small. Such a list could include Hillary Clinton herself and her clueless campaign staff. But at least the Democratic nominee tried to warn us about the consequences of electing Trump, including his potential perversion of the courts.

Even more culpable than Clinton, perhaps, is anyone who told voters that she didn’t deserve their support; anyone who complained that she was the same as Donald Trump or even worse; anyone who bloviated that Democrats are no different from Republicans; anyone who urged a ballot for Jill Stein as a way to advance progressive politics and achieve moral hygiene; and anyone who said that electing Trump might even “bring on the revolution.” Trump’s tiny, almost accidental margin in the Electoral College can be directly attributed to voters who acted out their “protest.”

It is now clear that we will endure the consequences of their stupidity for a long time, as will our children. We all ought to have known better after the 2000 election, when a few handfuls of ‘protest’ ballots (and a crooked Supreme Court majority) smoothed the disastrous Electoral College victory of George W. Bush. Will we learn the lesson this time?

What’s At Stake In Supreme Court Gerrymander Decision

What’s At Stake In Supreme Court Gerrymander Decision

On Tuesday, the U.S. Supreme Court heard one of the most politically consequential cases in years, to decide whether partisan gerrymandering, or having elected politicians choose which voters do and don’t cast ballots in specific U.S. House and state legislative elections, is constitutional.

If you want to know why the GOP has not only controlled the House but has supermajorities in states that should be politically purple, such as North Carolina and Georgia, the answer is extreme partisan gerrymandering.

If you want to know why House Speaker Paul Ryan cannot control his most right-wing members, as exemplified by the House Freedom Caucus (which didn’t think Ryan’s bill gutting the Affordable Care Act went far enough), the answer is extreme partisan gerrymandering.

If you want to know why the Democrats face such a steep climb in 2018 to retake the House (because they need 24 seats and there aren’t dozens of competitive races), the answer is extreme partisan gerrymandering.

If you want to know why so many red states are passing voter suppression and anti-abortion laws, blocking LGBTQ rights, and sued to block Obamacare and climate change-related environmental protection laws, the answer is extreme partisan gerrymandering.

“Through redistricting, Republicans have built themselves a perhaps unbreakable majority in the House,” Ryan Lizza, the New Yorker’s Washington correspondent, wrote in 2013 about the House Freedom Caucus. “But it has come at a cost of both party discipline and national popularity. Nowadays, a Sunday-school teacher can defeat the will of the Speaker of the House.”

The Supreme Court’s case raising whether extreme partisan redistricting is constitutional comes from Wisconsin. There, despite only 23,000 votes separating Donald Trump and Hillary Clinton in November 2016’s vote, Republicans hold two-thirds of the seats in its state legislature and House delegation. How did they get that power? It’s a pattern also seen in Michigan, Ohio, Florida, Texas, Georgia, North Carolina and Virginia—all states tipping the balance in national elections in recent years.

The answer is by segregating reliable Republican and Democratic voters, so Republicans could win on Election Day by smaller percentages than what Democrats would win by in their strongholds. That comes from drawing election districts so there were more reliable Republican voters in more districts, and crowding Democrats into fewer districts in their states.

Political district maps are redrawn after the once-a-decade federal Census. The result of the GOP’s extreme partisan mapmaking in 2011 has been its lock on the House, as well as on the red states that subsequently fought all things Obama and passed anti-abortion laws. These states have gone on to adopt the GOP voter suppression catalog to block Democratic voters, including tougher voter ID requirements to get a ballot, ending Election Day registration and voting, purging infrequent but otherwise legal voters, ending early voting, pre-registration of teens, etc.

In 2010 and 2011, Obama and the Democrats weren’t focused on blocking extreme redistricting and underestimated the GOP response to Obama and the Democrats’ 2008 landslide, which became one of their biggest errors. While Democrats today are waving the “never again” flag, their best hope for returning the political system to one based on competitive elections lies with the Supreme Court—which is hardly worth banking on. The Court has never invalidated political maps for arch partisanship; they only invalidate maps that are racially based to disenfranchise non-white voters.

The best way to understand how extreme redistricting works, and why it is so impactful comes from a Supreme Court decision this past spring, where the Court—before Judge Neil Gorsuch was seated—ruled that North Carolina’s congressional maps were illegal racial gerrymanders. In that decision, the Court’s majority noted that most Republican House members had been elected with 56 percent of the vote, while the state’s few elected Democrats won their seats with nearly 70 percent of the vote in their districts.

That figure—56 percent—is key. It’s in synch with what many election data analysts say is the built-in starting line advantage that the GOP achieved via redistricting: a 6-point head start. Needless to say, that is not all the GOP in these red states has done to disenfranchise Democrats. Stricter voter ID pre-empts another 2-to-3 percent of likely Democrats, according to academics, just as making voter registration tougher and narrowing voting options, like early voting, shaves off more fractions of a percent to tilt likely outcomes.

The Wisconsin case that prompted the Supreme Court review came after a lower court ruled that the maps drawn by its GOP in 2011 created so many wasted votes by Democrats that Wisconsin elections were anti-democratic. The Wisconsin GOP appealed and the high Court took the case.

What’s likely to unfold on Tuesday in the Supreme Court are exceptionally technical arguments about how to measure extreme partisanship and unfair, uncompetitive elections. Several years ago, Justice Anthony Kennedy, in another redistricting case, wrote that he wished that there was an objective standard. That prompted the legal team challenging Wisconsin’s maps to create a metric based on wasted votes.

But in the Court’s ruling last spring on North Carolina’s unconstitutional racial gerrymander—without Gorsuch—the Republican-appointed justices, including Kennedy, said in a dissent that partisanship was a part of human nature and politics. It might be odious, they said, but they were averse to regulating it. Whether that view holds is the critical question behind the Tuesday hearing at the Supreme Court.

But no matter what emerges, all Americans should note what extreme gerrymandering has done to the nation’s political culture and process.

It has ended competitive elections, boosted the most extreme Republicans in the South and Midwest, and left the nation split in two—with Democratic-run states on the coasts and vast red middle America. In numerous states, like Florida, there are cities with progressive mayors while legislatures and congressional delegations are deep red, and fervent political opponents.

Ultimately, extreme gerrymandering has undermined representative government, shrunk the role of citizens and empowered extremists—whether President Trump or the House Freedom Caucus. It’s allowed Republicans to create a structural starting-line advantage of nearly 10 points, regardless of candidates and issues. That has produced a nation where Democrats might win the popular vote but don’t win political power.