Earlier this morning, I happened to see part of Ted Cruz’s
appearance on Good Morning America; he was answering questions from the
audience, and one , by a man who started by saying he was in a same-sex
marriage, asked what Cruz’s stance on same-sex marriage was. Cruz’s response was (a) that the first
amendment guarantees freedom of religion and (b) the Supreme Court (or, as he
referred to them “five unelected lawyers in Washington D.C.” had wrongly
decided the issue, that it should be left to the states, that one of the
strengths of our nation was that different states could have different laws.
I was struck by the incoherence of his comments. I wanted to ask him if he thought Loving v.Virginia (unanimously, in 1967, invalidating state laws that prohibited “inter-racial”
was wrongly decided, whether states should be allowed to regulate marriage
between “racial” or ethnic groups—and, if he thought that decision was correct,
what made that decision different from the more recent one. I wanted to ask him if he thought different states
should be allowed to have significantly different laws of contract.
I wanted to pose a hypothetical: Suppose two people of the same sex in New York
entered into a marriage that was legal and valid in New York, graduated from
college, and both received wonderful job offers—in Houston. If they took those jobs and moved to Houston,
would the State of Texas recognize their marriage? If not, why not? And if not, what happens next? Because marital status is implicated in any
number of other family situations, and if their marriage is not valid in Texas,
then the State of Texas is imposing (in my opinion) undue burdens on them.
For example, it has implications for taxes. A married couple can file a joint federal
income tax return. Now, Texas does not
have a state income tax. But could this
couple still file jointly for federal income tax purposes?
For example, it has implications for end-of-life care issues. Generally, a spouse can, in certain
circumstances, make medical care decisions on behalf of a spouse who is unable
to make those decisions. Would that be allowed in Texas? Could a doctor even legally share information
about the patient’s condition with the spouse (who is, after all, not
recognized as a spouse in Texas)?
I could go on. But
Cruz wanted to imply that having different definitions of marriage in different
states was costless (as, for example, having different speed limits is pretty
much costless, or even different zoning laws).
But it clearly is not. And the
burdens would be borne by the people whose marriages are not recognized in some
(This, of course, leaves aside the fact that Cruz’s actual
position is not leaving this decision to the states, but enacting a
constitutional amendment defining marriage as a union or one woman and one