POLITICO (cached link because bullies):
Ted Cruz has some unsolicited advice for the states not specifically named in last week’s Supreme Court ruling on gay marriage: Ignore it.
“Those who are not parties to the suit are not bound by it,” the Texas Republican told NPR News’ Steve Inskeep in an interview published on Monday. Since only suits against the states of Ohio, Tennessee, Michigan and Kentucky were specifically considered in the Supreme Court’s Obergefell v. Hodges decision, which was handed down last Friday, Cruz — a former Supreme Court clerk — believes that other states with gay marriage bans need not comply, absent a judicial order.
“[O]n a great many issues, others have largely acquiesced, even if they were not parties to the case,” the 2016 presidential contender added, “but there’s no legal obligation to acquiesce to anything other than a court judgement.”
I have read the interview and Cruz’s remarks are not, in my view, being taken out of context.
I like Ted Cruz, I support Ted Cruz for president, and I have given Ted Cruz money. But I can’t agree with this, to the extent he is suggesting that it is considered legal to ignore Supreme Court decisions if no order has been issued to you directly.
The Supreme Court’s language was clear: “The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.” It is true, as a technical matter, that a case or controversy binds only the parties before it. However, the rule announced in a case applies to all citizens — and public officials who ignore a rule such as this, clearly expressed, risk more than just a specific order from the Court directing them to comply. They risk being sued for a deprivation of clearly established rights.
The fact that the “clearly established rights” were made up, will not keep the courts from whacking those who fail to comply.
For example: if I tell detectives to go ahead and interrogate a suspect they have arrested without reading him his rights, it doesn’t matter that no court has specifically ordered me to do that. Nor does it matter whether I agree with the Miranda decision. We all still have to follow it, and I’ll get whacked by a court if I don’t.
Now, to the extent that Cruz is suggesting civil disobedience (and if you read the interview, I don’t think he was), that’s a different issue. One might well ask: since the ruling is lawless, should citizens consider civil disobedience?
My own opinion is: no, not at this point. But we may be headed that way.
Let’s put this in a little perspective. The decisions of the past week were horribly disappointing. But anyone who suggests that this state of affairs is new or unprecedented, needs to read some history. Many other decisions have been at least as unmoored from the text of a statute or of a Constitutional provision, many with far more dire results. Take Roe v. Wade, as one obvious example. Look at the Commerce Clause decisions of the 1930s, such as Wickard v. Filburn.
I would support all manner of reactions that the GOP will lack the guts to try — and that, if they did try, would cause them to get shellacked in the elections. For example, I would support impeachment of any and all of the Justices that voted in the majority of either King v. Burwell or Obergefell. That, in my view, is a proper constitutional reaction to lawless decisions (notwithstanding the disastrous precedent established by the Samuel Chase impeachment proceedings).
But look. We didn’t impeach the Justices who made up a right to abortion in Roe. What makes you think they would impeach anyone now?
However, should courts start to order religious officials to perform ceremonies that violate their religious beliefs, civil disobedience would certainly be in order. At a certain point, enough is enough. Were I a pastor with religious beliefs against gay marriage, I would dare the feds to send guys with guns to force me to perform acts that violate my deeply held beliefs.
Even now, there is also a discussion to be had about the extent to which citizens should engage in civil disobedience generally concerning the overreaching of the central government. I recommend Charles Murray’s recent book By the People: Rebuilding Liberty Without Permission. I hope to review that book (which I have read) in a future post and have a discussion about civil disobedience and when it is appropriate.
When a curmudgeon like Charles Murray is talking about openly defying the federal government — and he does advocate that — you know we have gotten to a pretty desperate place.
But speaking as someone who has faced retaliation for speaking his mind — and who has watched others similarly situated cave to bullies — I can tell you that it’s a lot easier to bluster on the Internet about how tough you would be, than it is to actually carry through with it.
So. If you are going to follow Ted Cruz’s advice to simply ignore the Supreme Court, you’d better recognize what you’re doing as civil disobedience — and be prepared to face the consequences.
P.S. If you’re one of those people who believes it’s time to violate the law, and anyone who suggests differently is a coward, tell us in comments! Start by giving us your full name, where you work and where you live, and specifically what you have already done to resist the central government in a way that subjects you to criminal penalties or fines.