It IS the States' Jurisdiction

Yesterday, the Texas senator and presidential candidate Ted Cruz participated in a town hall as part of the ABC show Good Morning America.  Asked about his position regarding gay marriage, Cruz answered by saying, essentially, that from a constitutional and religious-freedom perspective, gay marriage was the province of the states and that the Federal government should simply stay out of it and certainly not impose any of its own constraints -- nor grant its own rights.

"If someone wants to change the marriage laws, I don't think it should be five unelected lawyers down in Washington," he said, referring to the five Supreme Court justices who voted in favor of allowing same-sex marriage. We would expect the people in New York to adopt different laws than perhaps in California or Texas or Florida", he said.

Which is, of course, exactly right.

It is only of passing interest that the question in the town hall was actually asked by a married gay man who was also, of more interest, a Republican.  Of much more interest is the matter of the "five unelected lawyers" and of the point at hand, which is this -- at what point is the Federal government in all its three branches obligated to step away from issues of morality?

The answer is clear to Ted Cruz and also to me.  That point is "almost everywhere."

As an example, we have been debating the issue of fetal life and abortion "rights" for decades and decades.  It is a perfect example of a morality debate, since half the country believes that abortion is murder and the other half believes it is a right of the mother.  That has not changed with Roe v. Wade and it isn't changing tomorrow either.

How much more different can opinions fall, when a "right" is opposed by a perception of "murder"?  Now, this is an issue on which I've already said that my opinions are particularly bland.  So perhaps it is a good one for me to use as my basis.  In fact, it is the perfect one for just that reason.

This, friends, is a Tenth Amendment case if there ever was one (that's the "powers not delegated" part of the Bill of Rights, if you forgot).  Where morality is at the core of the issue, the Federal government is instructed by the Constitution, except where specifically noted in its text, to cede the legislative authority to the legislative branches of the states.

New York, indeed, might come up with a different interpretation of the morality of abortion from that of California, Texas or Florida.  There are degrees in the discussion already -- what is "right" in the case of rape or incest or where the mother's life is at stake; what is the factoring in of the viability of the baby, based on its age, in the moral compass?

These are things that the citizens of Utah are going to see differently from those in Massachusetts.  And the Constitution recognized that in its construct over 200 years ago.

Outside of the fact that, in the case of abortion, we're talking extremes of rights vs. murder as the interpretation, gay marriage is no different.  And I applaud Sen. Cruz for taking a stand that may be at odds with his personal moral belief (I don't know for certain) but is squarely aligned with his constitutional interpretation.

In other words, even though Cruz may believe that gay marriage is patently wrong and marriage is a man/woman thing, he very comfortably agrees in the rights of those states where the citizens feel otherwise, to grant that state the right to recognize such unions as "marriages."  That is called principle over self-interest; principle over one's own view of the morality of a position.

It is probably a grudging position, but it is not only the correct one but a principled one.  And I think we would be far the better to have our presidents operate from a position of core principle in leading the country.  That's something I could more easily get behind than positions driven by polls.

I hope more people get that point.

Copyright 2016 by Robert Sutton
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