Marco Rubio promises to stack the Supreme Court against marriage equality

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.

Marco Rubio, via Gage Skidmore / Flickr

Marco Rubio, via Gage Skidmore / Flickr

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.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • Badgerite

    Well, yes and no. It is certainly not all that matters. The most that Scotus can do is turn it over to the states. And many of the states where same sex marriage is legal have done so by vote or by the actions of their own Supreme Courts. So the most that Scotus could do is to “roll back” the federal protection of the equal rights of gays by limiting the 14th Amendment to a rather unjustifiable interpretation. And unlike the picture that Cruz paints of the various differences in the marriages laws of the states, there are no differences that literally invalidate a marriage performed in one state from being given Full Faith and Credit in any other state. And that is just what a “roll back” would mean. To make the Constitution and the law a consistent whole, marriage equality must be recognized nationally or you will end up with other clauses of the Constitution being given short shrift. How would it work for people who have been married in the state of their residence for, say, decades to move to another state where they are suddenly not married. It would be a legal tangle to say the least and one that would affect the freedom of movement of gay families. It just is not as simple as Rubio paints it.

  • Alek Kolchak

    You can keep your license–that’s not a problem. You can frame it and hang it on a wall. Meanwhile, they might wipe your marriage off the books down at the courthouse. Of course, you could take your gun and go down there to let’em know you’re p.o.’d.

  • Alek Kolchak

    The fact remains that what the justices of the SCOTUS decide is all that matters. And there’s nothing, except the plain language of the Constitution, to limit a SCOTUS ruling; and even when it’s plainly written into the Constitution, the justices have carte blanche to twist even the plain meaning as much as possible.

  • Alek Kolchak

    Strictly speaking, Rubio is correct. The idea of “settled law” is not legally binding on any Supreme Court. It’s something SCOTUS justices “honor” … if they want to.

  • ComradeRutherford

    But Democrats won’t be allowed to vote, so it’s OK for the GOP to tell the truth about their political platform.

  • Agree with you on all you say here. I’ll add a bit. It wasn’t until the 70s in Tx that women could purchase real estate without a male cosigner. Rubio is right on one account, he will appoint anti lgbt bigots to the SCOTUS. Its only a one vote swing that could change this. We have to come out in major numbers to make this election count because the next President will likely appoint 2 or more justices.

  • As usual among the homophobic bigots and their pandering enablers, Rubio also repeatedly lies about marriage and marriage law.

    Expectedly, he points to ‘tradition’ and his own religious beliefs about marriage, as if they translate directly into the civil law version. As Jon Stewart said, “Marriage has never not been changing.” In the late 1700s, when the Constitution was originally drafted, slavery was totally legal and nobody but white male landowners were allowed to vote. (Also, Senator Rubio was popularly elected, another contra-Constitutional practice enabled only through a rather recent amendment, historically speaking.) Many states prohibited women from owning real estate, businesses or other property, and it was also a very common practice for what property a woman did own to transfer to her husband the second the ink was dry on the registration.

    There is nothing in the Bible that says it is a sin to tolerate or recognize someone else’s civil law marriage, even if contrary to the Bible’s edicts, no dowry was paid and the woman can actually petition on her own for a divorce. There is, however, late in the Bible, all kinds of statements about how it’s God’s place to judge people and not men.

    Finally, Rubio is flat out LYING when he claims and implies that conservative Christian ministers and priests have had to perform marriage solemnization ceremonies, compelled by law.

  • Sally

    Someone has stolen what was left of Marco’s brain. The synapses are just not firing. The scary part is that he and Cruz are supposed to be some hotshot lawyers, and they just make up more crap than Trump (the guy who says he graduated with an MBA, yet managed to bankrupt casinos.) Reince Preibus, you are the biggest jerk of all for heading up this bunch of losers and very dangerous demigods.

  • Badgerite

    Is he totally unaware that the bans on marriage equality had a favorable hearing in exactly one Court of Appeals. They lost in every other court that the cases were heard in. Every other court. And those courts included many Reagan and Bush appointees. Ted Olsen was a lead counsel in the cases against Proposition 8 in California.
    That means there is a legal consensus that has developed that the state bans on same sex marriage amounted to a violation of the Equal Protection Clause. There is a reason that courts write opinions rather than just issue edicts from on high. It is to justify and show the rational behind their decisions.
    A legal consensus, once established, is not that easy to “roll back”. It must be justified. I don’t think it would be feasible for a future Court to “roll back” the decision on marriage equality any more than it would be feasible for a future Court to overturn Brown v Board of Education. These decisions have become and will become accepted and main stream. Certainly within the legal community. They are accepted because of the reasoning and the decency behind them. And the younger the demographic, the more the support for marriage equality. The more that there is same sex marriage, the less there will be to fear from it. The lack of harm will be very, very evident. And then it just becomes a case of using the law to enforce your own animus on people. And that is constitutionally forbidden. And everyone should agree on that. Except maybe Scalia. And he’s________ ( fill in the blank).

  • Qwertyy650

    I would be glad to go purchase a gun (which Marco is in favor of) in the event someone tries to take my marriage license away.

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