Ted Cruz, Is Marriage a State Issue or a Federal One?

As I’ve disclosed before, I’m an ardent supporter of Ted Cruz. I’ve donated multiple times to his presidential campaign, and I’ve done a lot of work to promote his candidacy in my writing. That being said, during his recent appearance on “The Late Show with Stephen Colbert,” one of Cruz’s answers set off an alarm in my mind.

As Colbert pressed Cruz on his personal beliefs regarding same-sex marriage, Cruz did what he does, and deferred to the Constitution. Ted Cruz is a strict constitutionalist—he describes himself as such, and his record is nearly spotless in this regard. I say “nearly” because as I was preparing to put this piece together, something unusual came up that I can’t square away.

During his exchange with Colbert, Cruz said:

“Well actually, let’s be precise. Under the Constitution, marriage is a question for the states…the Tenth Amendment says ‘If it doesn’t mention it, that’s a question for the states.’ That’s in the Bill of Rights.”

Cruz is 100% correct in his assertion that constitutionally, the definition of marriage should be left to the states. And Cruz has been almost flawlessly consistent in this interpretation, except for one instance. When section three of the federal Defense of Marriage Act (DOMA) was struck down by the Supreme Court in 2013, Cruz objected.

Cruz said:

“Today’s Supreme Court decisions on marriage are a regrettable overreach against the will of the people as expressed through large, bipartisan majorities in Congress and directly through referendum in California—a markedly blue state.”

Cruz was referring not only to section three of DOMA, but to the striking down of Proposition 8 in California. With regard to Prop 8, Cruz was on the money. The people of California voted to define marriage as a union between a man and a woman, then the Supreme Court struck that down. This violated the people of California’s right as a state to define marriage.

However, on section three of DOMA, Cruz seems to value federal law over states’ rights. The full text of DOMA reads:

Section 1: This Act may be cited as the `Defense of Marriage Act’.

Section 2: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Disregarding section one, because it’s simply a title, section two sits right in line with Ted Cruz’s constitutionalist principles concerning states’ rights. However, section three, which was the piece of the legislation undone by the Supreme Court, asserts a federal right over marriage.

While DOMA correctly allowed all fifty states the right to define marriage within their own jurisdictions, asserting their autonomy, section three gave the federal government the ultimate power of defining marriage. This seems antithetical to Cruz’s deference to the Tenth Amendment. This would mean that in decrying the Court’s decision regarding section three of DOMA, Cruz landed on the side of the federal government defining marriage.

I’m not a legal analyst or a constitutional scholar—so perhaps I’m missing a nuance—but I cannot find a reason for Cruz’s apparent inconsistency.

The only thing I can imagine is that when Cruz said “…against the will of the people as expressed through large, bipartisan majorities in Congress,” he meant that because Senators and members of the House are elected by the people, the legislation they pass is therefore the will of the people. However, that would mean that anything passed by Congress is the will of the people, and we know that’s not the case—with specific regard to something like Obamacare, which was widely unpopular, but shoved through on a slim margin.

Even if Cruz meant that Congress enacted DOMA because the majority of the American people wanted it, it still violates the notion of states’ rights that Cruz promotes, as it was not a state by state decision, but a decision on the federal level.

If majorities of certain states didn’t want DOMA, and their Senators and Representatives voted in accordance with their constituencies, would it not be a violation of state autonomy to force DOMA on the states that didn’t want it?

As of yet, I can’t find an answer to this question, and I’d appreciate one from the Cruz campaign. I don’t want a candidate who holds inconsistent positions. I’m averse to the “I evolved” argument, especially given Cruz’s past studying the Tenth Amendment, but I’d take anything, so long as it answers my question.

Is marriage a state decision, or does the federal government have a say? If it is a state decision, as Cruz maintains, how was the repealing of section three of DOMA an overreach? Wouldn’t it have been a good move on the part of the Supreme Court?

I hope he answers this question soon.