Monday, December 14, 2015

Full Court Press

Sen. Marco Rubio (R-FL) thinks he can get rid of marriage equality by appointing justices who will overturn the Obergefell v. Hodges ruling last summer that made it legal.  Here he is on NBC yesterday with his logic:

CHUCK TODD: Are you going to work to overturn the same sex marriage?

MARCO RUBIO: I disagree with it on constitutional grounds. As I have said–

CHUCK TODD: But are you going to work to overturn this?

MARCO RUBIO: I think it’s bad law. And for the following reason. If you want to change the definition of marriage, then you need to go to state legislatures and get them to change it. Because states have always defined marriage. And that’s why some people get married in Las Vegas by an Elvis impersonator. And in Florida, you have to wait a couple days when you get your permit. Every state has different marriage laws. But I do not believe that the court system was the right way to do it because I don’t believe–

CHUCK TODD: But it’s done now. Are you going to work to overturn it?

MARCO RUBIO: You can’t work to overturn it. What you–

CHUCK TODD: Sure. You can do a constitutional amendment.

MARCO RUBIO: As I’ve said, that would be conceding that the current Constitution is somehow wrong and needs to be fixed. I don’t think the current Constitution gives the federal government the power to regulate marriage. That belongs at the state and local level. And that’s why if you want to change the definition of marriage, which is what this argument is about.

It’s not about discrimination. It is about the definition of a very specific, traditional, and age-old institution. If you want to change it, you have a right to petition your state legislature and your elected representatives to do it. What is wrong is that the Supreme Court has found this hidden constitutional right that 200 years of jurisprudence had not discovered and basically overturn the will of voters in Florida where over 60% passed a constitutional amendment that defined marriage in the state constitution as the union of one man and one woman.

CHUCK TODD: So are you accepting the idea of same sex marriage in perpetuity?

MARCO RUBIO: It is the current law. I don’t believe any case law is settled law. Any future Supreme Court can change it. And ultimately, I will appoint Supreme Court justices that will interpret the Constitution as originally constructed.

Let’s get a couple of points out of the way.  With the understanding that I’m not a lawyer and so my interpretation of the law is based solely on what I’ve read in the history books by people who know a lot more about the law than I do, let’s dispense with the idea that the Supreme Court cannot overturn state and local laws that impose discrimination on its citizens.  If that were truly the case, then Mr. Rubio is also in favor of overturning Brown v. Board of Education (1954), which undid discrimination in public schools, and Loving v. Virginia (1967), which ended bans on interracial marriage.  The Loving case is truly the precedent for the Court saying that state marriage laws cannot bar certain people from being married.  It didn’t say anything about marriage licenses or who can perform the ceremony, so Mr. Rubio is setting up a strawman argument with his line about Elvis impersonators.  The King’s Invokers can still do the ceremony in Vegas and Florida can still make you hold off your hunka hunka burning love for a couple of days.

Second, in order to have the Court review a case, there has to be a federal court ruling that challenges the freedom for same-sex couples to get married.  In other words, there has to be someone who can show damages to themselves as a result of the ruling.  That’s called “standing.”  So far no one has been able to prove that they suffered any damages because the gay couple next door decided to get married.  That was the crux of the argument in Hollingsworth v. Perry (2013), also known as the Prop 8 case, and why it was thrown out by the Supreme Court.  So unless there’s someone out there who can maneuver a case through the courts that passes the standing tests as set forth by this ruling (much less the laugh test), there won’t be a challenge to Obergefell v. Hodges to rule on no matter who Mr. Rubio thinks he will appoint to the court.  And even if there is, the Court is rarely inclined to overturn precedent, especially their own.

Be that as it may, Mr. Rubio’s bigoted view of marriage reminds us that electing a president brings with it the power to appoint justices to the Supreme Court and given the actuarial tables and nature, the next president will probably have that duty thrust upon him or her.  As I am fond of reminding voters, there’s more at stake in those three little words — The Supreme Court — than just who gets the most electoral votes.

3 barks and woofs on “Full Court Press

  1. Rubio’s whole “argument” is hot air. Fundamental rights are not subject to popular vote, and marriage to the person of one’s choice is a fundamental right. Also, the Court didn’t address “the definition” of marriage — it addressed two questions stemming from the 14th Amendment’s guarantee of equal protection of the law. No one has changed the definition of marriage, whichever definition you happen to favor. The Court has merely affirmed the right of another group of citizens to the benefits of the law.

  2. Good point about standing. But isn’t it also true that no lower court could rule against us if a case were brought? They’re all bound by Obergefell, aren’t they. It’s settled law, no matter what the right wing says, and lower courts must follow the rulings set forth by the Supreme Court. So Rubio could appoint whoever he wants to (I shudder at the thought), but there’s be nothing they could do about Obergefell.

    • In the unlikely case that a potential plaintiff could establish standing, if the lower courts ruled under the precedent set by Obergefell, plaintiffs could appeal all the way to SCOTUS.

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