Tuesday night, Ted Cruz was a guest on Stephen Colbert's "Late Show" and got a little bit of heat from the host when he invoked Ronald Reagan's name. For some reason, within the GOP, that's like mentioning Jesus Christ, because they believe that Ronnie was the savior of this nation and never did anything wrong. To his credit, Colbert pointed out two things that Reagan favored that are anathema to today's Republican party -- amnesty for illegal immigrants and raising taxes.
Then the conversation turned to gay marriage, and Cruz said, "Under the constitution, marriage is a question for the states." Colbert corrected him: "It doesn't mention marriage in the constitution." Cruz replied, "That's why it's a question for the states," using the 10th amendment as the basis for his argument. He continued:
I believe in democracy, and I don't think we should entrust governing our society to five unelected lawyers in Washington. Why would you possibly hand over the rights of 320 million Americans to five lawyers in Washington to say we're going to decide the rules that govern you? If you want to win an issue, go to the ballot box and win at the ballot box. That's the way the constitution was designed.
Actually, Mr. Constitution Expert, that's not how it was designed at all. We don't all get to vote on every issue of importance in this country. We have a representative democracy, where we elect people who decide the rules. More importantly, Cruz might want to take a review course on Article III of the constitution, which sets up the Supreme Court as the final arbiter of whether laws enacted by states or the federal government are, in fact, constitutional.
When Cruz refers to "five unelected lawyers," he means the Justices (all of whom only got the job after being approved by our elected leaders) who voted in favor of making gay marriage legal across the United States in a 5-4 decision. By Cruz's standards, if marriage were left entirely to the states without the Supreme Court getting involved, it would still be illegal for an interracial couple to get married in Virginia and elsewhere (see the 1974 Loving decision).
The losing side always brings up phrases like "activist judges" or "unelected lawyers" in making these specious arguments. Believe me, every time there's been a 5-4 ruling in favor of something Cruz agrees with, he didn't have a problem with those five lawyers or say a word in opposition.
Moreover, as I have written often, there are certain civil rights -- human rights -- that should never be put to a vote, including the right to marry. Of course Cruz wants everything done democratically, because he's spent his entire life as part of the majority and thus has no idea what it means to be a minority whose rights are at the whims of a larger group.
What Cruz refuses to recognize is that popular opinion on gay marriage has changed dramatically in recent years and, if it were put to a real vote -- not a politically manipulated election, but an honest appraisal of the populace -- his side would come out on the short end. And then he'd have to find another scapegoat to blame.