In
his Valentine’s Day blog post, Joel Lopez gives an overview of a Bill filed in
the U.S. Senate by Senators Ted Cruz of Texas and Mike Lee of Utah, both
Republicans whom I admire in many ways (e.g.,
their solo stand to block Obamacare funding); but not in this bit of
legislative folly. Joel also wrote a
thoughtful commentary to my recent post on marriage equality, in which he finds
my post “…hits the nail on the head when it
comes to what most liberal Americans think when it comes to marriage equality.” While I don’t think it will surprise Joel
that I disagree with the Cruz-Lee legislation, he and others might be surprised
that it’s because I believe my views on marriage equality to be fundamentally
conservative, not liberal.
The
Cruz-Lee Bill seeks to expand States’ rights.
But, it does so by weakening and infringing on individual, fundamental Privacy,
Liberty and Due Process protections in the U.S. Constitution. In Loving v Virginia (1967), the U.S.
Supreme Court made it clear the right to marry is a decision an individual is
free to make without governmental interference, other than establishing minimum
ages. So, while the States have
constitutionally-protected rights and expressly reserved powers to them – like the
authority to establish age of consent, & minimum ages for marriage, that
authority has limits. For me, many of
those limits stop at the water’s edge of individual constitutionally-protected
rights; like the right to marry.
To
illustrate, consider a different circumstance protected by the same provisions
of the Constitution. I noticed in Joel’s first blog post that he and his wife
homeschool their first grader. In the
early 1980s in Texas, then-Attorney General Jim
Mattox, a Democrat, publicly stated he did not believe parents were qualified
to raise their children, much less teach them at home. General Mattox then went on a crusade to
crush parents’ rights to homeschool their children. What resulted was a years-long battle to
protect the individual rights of parents to direct their children’s education
and upbringing from the overreaching intrusion of the State, culminating in a
Texas Supreme Court decision in favor of parental rights and family privacy.
The battle over marriage equality is simply a rose by another
name; a distinction without a difference in the context of constitutionally-protected
Privacy, Liberty and Due Process interests of the individual. Constitutional rights are not issued in Small,
Medium or Large like a T-Shirt or a fountain drink. It’s either a right, or it isn’t. In matters of marriage and family, the U.S.
Supreme Court has repeatedly recognized the Liberty interest in family privacy
“has its source, and its contours are ordinarily to be sought, not
in state law, but in intrinsic human rights…” (as stated in Smith
v Organization of Foster Families, a 1977 U.S. Supreme Court case) (Emphasis
Added).
It’s important I reiterate my position on marriage equality
is neither liberal, nor rooted in any liberal ideology. My position is that marriage equality has
always been protected; right there in the U.S. Constitution, just waiting to be
recognized, expressed and exercised to the benefit of anyone being
discriminated against. I don’t have to
agree with everyone’s choice of spouse to respect their individual right to
choose that spouse, much like I don’t have to agree with a parent homeschooling
their child to respect their protected right to do so. Ultimately, it’s my conservative recognition that in order to expand States’ rights
regarding marriage would necessarily infringe on the rights of individuals that
guides my position. That’s the very
definition of an unconstitutional law. Sens.
Cruz and Lee both have deep, broad experience in the practice of constitutional
and appellate law. Their proposal is a
naked, shameful political stunt to throw red meat at what is a clear legal
issue. Regardless of any majority (read here, “mob”) effort to suppress individual
rights, the Cruz-Lee
Bill should go no further than the bad idea pile.
Reigning in abusive, expansive, intrusive, overreaching
government is always an act of conservatism; a clinging to and defense of the founding
principles of individual rights, free from government infringement. Edmund Burke famously said, “Those who do not
know history are destined to repeat it.”
I believe it’s imperative that every citizen be willing to stand up and
protect the fundamental rights of any citizen.
The infringement of one right only ever leads to the infringement of
another. Thus, the infringement of my
neighbor’s rights today will inevitably and eventually lead to the infringement
of my rights tomorrow; and vice versa. That’s
why I support marriage equality; and why I oppose the Cruz-Lee Bill.
