Voices: I don’t think Ted Cruz or Clarence Thomas actually understand the Constitution

The best thing about mistakes is that you can learn from them. House Democrats, having finally learned from the consequences of not codifying Roe v Wade before the Supreme Court had a chance to eliminate a woman’s right to choose, are this week set to vote on the Respect for Marriage bill. The bill, if passed, will ensure that both the right to contraception and the right to same-sex marriage are guaranteed in federal law.

This is being done in hopes of preemptively neutering a rogue and illegitimate Supreme Court from taking even more rights away from law-abiding Americans. Despite the reassurances of Justice Samuel Alito’s opinion overturning Roe that the Court is not looking to take away other rights, it’s clear they plan to do just that. Clarence Thomas, in a concurring opinion, suggested overturning Obergefell v Hodges, Lawrence v Texas, and Griswold v Connecticut — which respectively guaranteed the right to same-sex marriage, overturned homophobic sodomy laws, and protected the right of married couples to access contraception.

He isn’t alone. Over the weekend, Republican Senator Ted Cruz of Texas increased fears that conservatives are courting lawsuits to challenge the validity of these most basic rights. “Obergefell, like Roe v Wade, ignored two centuries of our nation’s history,” he said. “Marriage was always an issue that was left to the states… I think that decision was clearly wrong when it was decided. It was the court overreaching.”

Was it, though? One of my favorite episodes of The West Wing has always been the one where Ainsley Hayes, a Republican hired by the show’s fictional Democratic administration, explains to her male colleague why she opposes the Equal Rights Amendment. “Because it’s humiliating,” she exasperatedly says. “A new amendment we vote on declaring that I am equal under the law to a man? I am mortified to discover there’s reason to believe I wasn’t before.”

Despite being on the opposite end of the political spectrum as Ainsley, I’ve always loved this dialogue. It encapsulates the gist of my argument for the unconstitutionality of same-sex marriage bans. As far back as the mid-00s, I was arguing both that discrimination against gay people violated the Civil Rights Act because it was sex discrimination and that marriage bans violated my rights as guaranteed by the 14^th Amendment.

I’m not a lawyer, but the wisdom of this position prevailed in two separate Supreme Court cases. In Harris Funeral Homes vs EEOC, the Court found that discriminating against LGBT people in employment violates Title XII of the Civil Rights Act. Five years earlier, in Obergefell v. Hodges, the Court ruled that bans on same-sex marriage violated the due process and equal protection clauses of the 14^th Amendment. I didn’t need a new law to have the right to marry the man I love, because I had that right all along.

This would be news to Cruz. “The way the Constitution is set up… is to convince your fellow citizens, and if you succeeded in convincing your fellow citizens, then your state would change the laws to reflect those views,” he said. “In Obergefell, the court said, ‘No, we know better than you guys do, and now every state must sanction and permit gay marriage.’”

This is beside the point. We don’t need a new amendment. My right to marry was always in the Constitution.

“I am a citizen of this country,” Ainsley tells her annoyed Democratic colleague. “I am not a special subset in need of your protection. I do not need to have my rights handed down to me by a bunch of old, white men. The same [Amendment] 14 that protects you protects me.”

My right to marry someone of the same sex is explicitly spelled out in both the “due process” and “equal protection” clauses of the 14^th Amendment. No less than the Supreme Court of the United States of America agrees with me.

Of course, precedent means nothing to this group of reactionary Republican operatives cosplaying as justices. What Cruz and Thomas are arguing is deadly serious. They’re claiming that the 14^th Amendment – and the right to due process and equal protection under the law – does not apply to gay Americans and indeed that it applies only to whom they say it does.

That is a terrifying prospect. If the 14^th Amendment does not apply to every American, it applies to no American. Republicans want to strip us of equal protection (something they’ve long desired to do) and due process to enforce their unpopular, homophobic agenda. This is part of their grand plan to march us towards a Christian nationalist hellscape where the only people with rights are those holding the most reactionary positions. Anyone to the left of Fred Phelps need not apply.

This is not a country I want to live in. The same 14^th Amendment that protects Ted Cruz and Clarence Alito protects me. It must. Otherwise, what is the point of the Constitution?

Either I am equal before the law, or I am not. If I am not equal before the law, then I cannot support this country. It is owed none of my allegiance. If the 14^th Amendment – or the entire Constitution for that matter – only applies to some and not all Americans, it isn’t a legitimate document. The right – if not those in positions of power, the people who vote to put them there – should think long and hard about what that means.

After all, if they can take away the rights of women, or the rights of gay Americans, they can take away your rights, too. Ainsley used the word “humiliating.” I would use the word “infuriating.”

I’m glad the Democrats are proposing a bill to protect the rights of American citizens against a vicious attack from the far-right Republicans. I’m insulted that it is even necessary, though, and I am outraged that we need a new law declaring that I am equal under the law to straight people – because I am mortified to discover there is reason to believe I wasn’t before.