Friday, February 13, 2015

Guest Blog Post: Scott Titshaw, What the Supreme Court Can Learn from Ted Cruz

Below is a cross-post from Huffpost, written by Professor Scott Titshaw, Associate Professor of Law, Mercer University School of Law.


In what appears to be a new annual tradition, U.S. Sen. Ted Cruz (R-Texas) is celebrating the week leading up to Valentine's Day by reintroducing a bill that would penalize married same-sex couples who move to his home state or any other state that does not recognize same-sex marriages for state purposes.

Cruz's bill would require federal authorities to treat as single any same-sex spouse living in any of the 13 such states, thus disqualifying them from 1,000 different marriage-related benefits in areas ranging from Social Security to federal taxes to copyright to veterans' benefits. Most cruelly, if a gay woman in, say, Texas were to marry someone from another country, Cruz's bill would require her to pick up and move to a state that recognizes same-sex marriage in order for her wife or stepchildren to immigrate to the United States.

As a Canadian-born U.S. citizen, Sen. Cruz should be intimately aware of how important family status is under U.S. immigration and nationality law. In fact, the vast majority of legal immigrants to the United States qualify on the basis of family relationships.

Sen. Cruz claims to be concerned that federal recognition of same-sex marriages is interfering with each state's right to define marriage for itself, but clearly, his real problem is with a federal definition of marriage that he personally dislikes.

I say this because the anti-gay definition of marriage in the Defense of Marriage Act (DOMA) required federal officials to ignore same-sex marriages even in states where they were celebrated, yet Cruz never had a problem with this apparent infringement on states' rights before the U.S. Supreme Court gutted DOMA in United States v. Windsor. In fact, he once defended DOMA against "specious" attacks citing states' rights. Now just such an argument is so important to him that he'd force Edie Windsor (the plaintiff in the Supreme Court case) to pay $363,053 more in federal estate taxes if she were to move from New York to Texas, and any gay Texan who marries a Spaniard to move to a state like Virginia if they want to live together.

The meaning of "equal protection" under the U.S. Constitution is highly disputed in general. Yet the idea that a U.S. citizen should have to migrate to another state in order to live together with his husband and children seems to be an example of what Justice Kennedy might call "a denial of equal protection of the laws in the most literal sense."

Fortunately, Sen. Cruz's "State Marriage Defense Act" is unlikely to become law anytime soon. Yet it is a good example of the kind of chaotic reaction the U.S. Supreme Court eventually could unleash if it upheld anti-gay state marriage laws inthe case it will hear later this term. Justice Kennedy and Justice Roberts, are you listening?


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