Sen. Ted Cruz says Sen. Marco Rubio and Donald Trump believe that the Supreme Court decision on gay marriage “is the settled law of the land and we must … surrender and move on,” accusing them of “repeating Barack Obama’s talking points.” Cruz goes too far in Rubio’s case, and Trump hasn’t echoed Obama on the issue, either.
On the day of the court ruling, Rubio said he disagreed with it and argued that the U.S. Constitution gives states – not the federal government or courts – the power to define marriage. He said the next president should “nominate judges and justices committed to applying the Constitution as written.” In December, Rubio said the decision is not “settled law” and can be overturned, promising to “appoint Supreme Court justices that will interpret the Constitution as originally constructed.”
As for Trump, he also criticized the decision, but he has been less clear on what he would do about it. In January, Trump told Fox News’ Chris Wallace that he would “strongly consider” appointing justices who would overturn the ruling.
Cruz made his remarks Feb. 11 at the Carolina Values Summit at Winthrop University in Rock Hill, South Carolina. He said “my two leading competitors in the Republican primary” say “that the decision is the settled law of the land and we must accept it, surrender and move on.”
“There is something profoundly wrong when Republican presidential candidates are repeating Barack Obama’s talking points on gay marriage, saying we surrender, we give up,” Cruz said. “You might as well light the White House up in rainbow colors.”
The Herald, a local newspaper that covered the event, reported that Cruz was referring to Trump and Rubio, and Cruz’s campaign confirmed that when we asked about the senator’s remarks.
On CNN’s “State of the Union,” Rubio accused Cruz of lying. “What he’s saying is that I have called it settled law. Those words have never come out of my mouth. He’s making it up. It’s a lie.”
Rubio’s claim that Cruz is lying prompted us to take a closer look at what Cruz said and what the record shows.
Certainly, there are differences between Cruz and his top opponents on how to respond to the gay marriage ruling. Cruz has sponsored a constitutional amendment to define marriage as a union between a man and a woman. Rubio and Trump do not support amending the Constitution, and we’ll explain why shortly.
But first let’s look at Rubio’s statements on the gay marriage decision, which the court issued on June 26, 2015. The high court ruled that the state bans on gay marriage violated the U.S. Constitution.
Rubio put out a statement on the day of the ruling that said: “While I disagree with this decision, we live in a republic and must abide by the law. As we look ahead, it must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.” He also tweeted out parts of his statement, including the part in which he says, “While I disagree with this decision, we live in a republic and must abide by the law.”
Some conservatives read Rubio’s statement to mean he was giving up the fight against gay marriage. Breitbart, a conservative website, wrote a story that carried the headline “Rubio caves after same-sex marriage ruling: We ‘must abide by the law.’ ”
But Rubio’s statement also laid out a case for why he disagreed with the ruling and what can be done about it.
“People who disagree with the traditional definition of marriage have the right to change their state laws. That is the right of our people, not the right of the unelected judges or justices of the Supreme Court. This decision short-circuits the political process that has been underway on the state level for years.” He goes on to say that the next president should make it a priority to “nominate judges and justices committed to applying the Constitution as written and originally understood.”
His statement stopped short of saying he would seek to appoint judges to overturn the ruling, but it is implied.
So, Cruz goes too far in saying that Rubio believes the decision is the “settled law of the land and we must accept it.” In fact, Rubio stated exactly the opposite during an interview on “Meet the Press” in December.
Rubio, Dec. 13, 2015: It is the current law. I don’t believe any case law is settled law. Any future Supreme Court can change it. And ultimately, I will appoint Supreme Court justices that will interpret the Constitution as originally constructed.
During that same interview, Rubio said he opposes a constitutional amendment for the same reason that he disagreed with the court decision. He said the Constitution gives the states power to define marriage, not the federal government, and to amend the Constitution would give the federal government the power to regulate marriage.
“As I’ve said, that would be conceding that the current Constitution is somehow wrong and needs to be fixed,” Rubio said, explaining his opposition to a constitutional amendment. “I don’t think the current Constitution gives the federal government the power to regulate marriage. That belongs at the state and local level.”
Cruz’s campaign told us that Rubio’s position “might as well be surrender,” and that Rubio needs to do more if he is serious about overturning the court decision.
Cruz is free to express his opinion that Rubio isn’t as committed as he is to overturning the gay marriage ruling. But Rubio didn’t say the “decision is the settled law of the land, and we must accept it, surrender and move on.”
Trump’s stance is harder to pin down. In 2013 he said he was “evolving” on the issue of gay marriage, but not supportive of it. Similarly, he said in June 2015 — in an interview taped just before the court ruling — that he supports traditional marriage but understands public opinion is “changing rapidly.”
In response to the court decision, Trump tweeted that he disagreed with the ruling, and he blamed the wrong justice for it. The tweet said that “the Bush appointed Supreme Court Justice John Roberts has let us down.” Roberts not only voted with the minority but wrote the primary dissent.
In August, Trump said he did not think a constitutional amendment could pass. “Congress can’t pass simple things, let alone that. So anybody that’s making that an issue is doing it for political reasons. The Supreme Court ruled on it,” Trump said.
In September, on MSNBC’s “Morning Joe,” Trump said he agreed with host Joe Scarborough that the court ruling is now the law. “You have to go with it. The decision’s been made, and that is the law of the land.”
In a Jan. 31 interview with “Fox News Sunday,” Trump said gay marriage is a “states’ rights issue” and the Supreme Court should have left the decision to the states. Asked by anchor Chris Wallace if he would appoint justices to overturn the decision, Trump responded: “I would strongly consider that, yes.”
So, Trump would consider appointing judges who would overturn the gay marriage ruling. Rubio says he will appoint judges who would interpret the Constitution in a way that would lead to the overturning of the gay marriage ruling. Neither of those positions are “Obama’s talking points.”
Update, Feb. 18: A reader referred us to a Trump interview with Fox News host Howard Kurtz that aired on July 5, 2015. In the interview Trump restated positions on the ruling that we already had included in our story: He disagreed with the ruling; he would have “preferred states” to make decisions on gay marriage rather than the court; and he indicated that he did not think a constitutional amendment would be successful. He did not mention – and was not asked – if he would consider appointing judges who would overturn the ruling. As we said in our article, “Trump’s stance is harder to pin down” than Rubio’s and certainly is different from Cruz’s, but he is not “repeating Barack Obama’s talking points.” And since that July interview, Trump has said he would consider appointing judges who would overturn the gay marriage ruling. We’re providing this update to add to the record.