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Ellison’s Must Read of the Day

Ellison must read
• October 8, 2014 10:01 am

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My must read of the day, "Why Ted Cruz is Making a Name for Himself on Gay Marriage," in the National Journal:

The Supreme Court's decision Monday not to hear the same-sex marriage appeals they were faced with—effectively legalizing it in at least five more states—rocked the country. Responding to this latest development in a shifting tide toward same-sex marriage's legalization, Republican Gov. Scott Walker of Wisconsin acknowledged that the fight in his state was "over." Rather than claim defeat, most Republicans remained silent.

Not Cruz. On Monday, his office released a statement blasting the Supreme Court's decision as "tragic and indefensible."

"By refusing to rule if the states can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution," he said in the statement. "The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing."

To fight the Court's tacit approval of gay marriage, he also announced plans to introduce a constitutional amendment blocking the federal government or the courts from striking marriage laws in the states.

There’s always this debate over whether or not the courts, and especially the Supreme Court, should be judicial activists. Conservatives typically say no they should not—their job is to uphold the law not to make it.

Given that, I understand the argument that the circuit courts overturning the bans on same-sex marriage are instances in which unelected judges are acting as activists by superseding laws that actually were enacted by elected officials. I think that is a fair point, whether I personally agree with the courts ruling or not. However, two wrongs don’t make a right. If conservatives are asking the Supreme Court to take up this case, when they often adamantly condemn judicial activism aren’t they enabling and encouraging the very thing they hate?

I say they are.

The Supreme Court shouldn’t take this up right now. If they do they’re injecting themselves in a state-level debate. Every one of the five cases that the court considered for review had the same ruling. In each case the circuit court decided that same-sex marriage bans were unconstitutional—and they weren’t rulings from one circuit, but three different ones. There is not discrepancy for the Supreme Court to resolve.

Conservatives criticizing the court for not taking this up are asking that the court step into a social debate and tell us all what is right or wrong. They are asking them to be judicial activists when they say they want to see judicial restraint. By doing that those people are changing a belief when it fits their agenda, and I will never see that as admirable—either you want judicial restraint or you don’t. You can’t say you want it only some of the time. It’s hypocritical at best and politically expedient at worst. Be frustrated with the circuit courts for their activism if you think it’s wrong, but don’t ask the Supreme Court to follow their lead. Until there is a conflicting ruling among the federal circuit courts conservatives should want the Supreme Court to stay out.

Published under: Supreme Court