Marco Rubio doubled down on his promise to overturn the Supreme Court’s same-sex marriage ruling by stacking the Court with conservative justices on Sunday, telling Chuck Todd on Meet the Press that “[Marriage equality] is the current law. I don’t believe any case is settled law…Any future Supreme Court can change it.”
Rubio’s assertion comes on the heels of comments he made in an interview with the Christian Broadcasting Network suggesting that not only would he appoint justices to overturn Obergefell v Hodges as president, but that he’d go a step further and repeal President Obama’s executive order prohibiting federal contractors from discriminating based on sexual orientation or gender identity.
The current law/settled law distinction has been doing a lot of work for Rubio on the campaign trail thus far. It’s also stating the obvious to the point of absurdity. Rubio might as well say that Brown v Board of Education is “current law” instead of “settled law.” Provide the right mix of Supreme Court justices — say, replace Ruth Bader Ginsburg with someone whose ideology tracks closer to John Roberts or Samuel Alito — and you can undo decades of judicial precedent that we’ve come to consider settled.
One might say that Rubio is endorsing his own brand of judicial activism.
Furthermore, Rubio’s reasoning for why the Obergefell ruling is illegitimate and should be overturned has a glaring hole. As he said on Sunday, “I don’t think the current Constitution gives the federal government the power to regulate marriage.” Taken at face value, not only does that statement imply a repeal of marriage equality; it suggests that the 1,138 rights and protections the federal government has established for married couples — from preferential tax treatment to employee benefits to immigration considerations — are invalid, as well. That puts Rubio’s position on marriage roughly in line with where Ron Paul landed on the issue in 2012.
It’s also, you know, wrong. The Supreme Court is part of the federal government, meaning that when it comes to evaluating state-level laws in the context of the Constitution, “regulating marriage” is the federal government’s job.
Good luck arguing otherwise in a general election.