Cuccinelli, gay marriage and the 10th Amendment
It is a thorny issue that has gotten at least two presidential candidates in trouble with important aspects of their base. In a battle to secure two vital and reliable voting blocks, the tough choices regarding gay marriage can lead to confusing stances.
One influential part of the republican party, social conservatives, are opposed to gay marriage under any circumstances. Many support a constitutional amendment that would confine marriage to one man and one woman. They believe that it is not only the federal government’s right, but its responsibility to get involved in the marriage debate.
Another, growing voting block comes from the emerging tea party. A group advocating for as little government as possible. In particular they want as much power in the hands of state governments as enumerated in the 10th Amendment of the U.S. Constitution. Constitutional purists would argue that if a state (like New York, Iowa and others already have) would like to legalize gay marriage, than the Federal Government should butt out.
This difficult balance led to a confusing explanation on her gay marriage stance from Rep. Michelle Bachmann (R-MN) a candidate for president and a darling of both the tea party and social conservatives. Bachmann first said that New York’s law should stand, based on the 10th Amendment, but then later said she supported a constitutional amendment banning same-sex marriage.
Gov. Rick Perry (R-TX) who is expected to announce his intentions this weekend, ran into a similar conundrum. In fact, just today, Perry’s 10th Amendment priority was attacked by former Sen. Rick Santorum (R-PA), a strong social conservative.
Virginia Attorney General Ken Cuccinelli shares a similar political identity. He told me in an interview last week that he is committed to what he called “first principles”. Principles shaped by the founding fathers, principles like the 10th Amendment and state’s rights. He is also very much opposed gay marriage and is open to the idea of a constitutional amendment to ban the practice.
However, in the current climate, the Attorney General made it clear that state’s rights take precedent.
“The Supreme Court ruled that marriage is not a subject that the federal government can exercise jurisdiction over,” he said. “Including the courts.”
Cuccinelli made it clear, that he was more concerned about the federal government (especially the current administration) forcing states to allow gay marriage or recognizing unions from other states. In his mind that is the greater threat. He conceded however, that barring a constitutional amendment, there is little the federal government can or should do when an individual state allows marriage between same-sex couples.
“Frankly, I think it is worth some consideration for the things that aren’t reached by the federal constitution to just leave it to each state,” said Cuccinelli. “That is the way abortion was before Roe v. Wade.”
When judging the balance between state’s rights and social conservative values, Cuccinelli believes the federal government’s reach is the greater threat.
“As between the two options, I certainly prefer the states deciding these constitutional questions and I don’t mean just the one you raised,” he said. “I mean all the ones that fall in that gray area of whether or not the federal government can do it.”
He went on to say, “If it is a gray area, the federal government shouldn’t be able to do it.”
But despite the continued progress same-sex marriage laws have made in states across the country, Cuccinelli is confident that when left of up to the people of each state, most will choose to protect traditional marriage.
“Where this has gone to the people the people are 31-0, in all states, including California and Maine not places that are thought of as conservative bastions, where traditional marriage has been protected by the people.”
For Cuccinelli the battleground is state by state and it is something he believes traditional marriage supporters can still win.
“You saw it pass New York recently,” he said. “Put in on the ballot in New York and see what happens.”
The Attorney General’s complete remarks on same-sex marriage and the 10th Amendment can be found below: