“Ted Cruz says Supreme Court was ‘clearly wrong’ about 2015 same-sex marriage ruling,” is the CNN headline. Here’s why Ted Cruz is clearly wrong about the landmark 2015 Supreme Court decision.
The Fourteenth Amendment, Section 1, plainly 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.”
Pay attention to this part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” By denying the franchise of marriage to same-sex couples, states were abridging the privileges of US citizens. Marriage is a civil right. Civil rights are not a matter for majority rule. As James Madison understood, applying the principle of majority rule to civil rights constitutes tyranny of the majority. Madison designed the Bill of Rights to prevent such a thing. (He had early sought to explicitly articulate this federal power in the Constitution itself. See The Supreme Court Affirms the Tyranny of Majorities.)
The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Read that again. You may be unfamiliar with the Ninth Amendment. It is rarely referenced. Just because same-sex marriage—or marriage in any form—goes unmentioned in the Constitution does not mean marriage is not a right retained by the people. The Ninth Amendment very clearly states the principle here. Read it once more: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Why do conservatives rarely if ever talk about the Ninth Amendment? Now you know why: it’s the linchpin of the liberal order established by our nation’s founders. The American Republic, as Glenn Loury put it so well in 2020, is an instantiation of Enlightenment principles of individual liberty and civil rights. That’s right, the founders were liberals.
Conservatives love the Tenth Amendment, of course: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This is a statement concerning our federal system.
However, conservatives mislead their public by referring to the amendment as recognizing “states rights.” States don’t have rights. People do. States have power (and so do people). The amendment is not talking about rights. Read it again. It’s talking about powers. Marriage is a civil right. States officially recognize marriage to give it the force of law, but states do not have the power to deny civil rights to American citizens (at least states do not have the authority, i.e., legitimate power, to do so, which is the form of power manifest in law in a just civil order). You and I are first and foremost citizens of the nation, whether we are gay or straight or black or white.
Think about it. If Cruz were correct, then the Loving v Virginia ruling, which recognizes the right of interracial couples to marry, is bad law and should be overturned. Does anybody believe that governments should be allowed to decide whether a black woman marries a white man? Are you a racist?
freedom and reason 