Neither Sens. Rand Paul nor Marco Rubio signed a friend-of-the-court brief asking the Supreme Court to allow the question of marriage to be decided by the states. Ted Cruz is the only announced presidential candidate from the Senate who’s signed the brief which was joined by 57 members of congress, but only only six Senators.
The brief argues that that — based on the ideas of Federalism — the issue of marriage has traditionally been left to the states and that is where the Supreme Court ought to let it stay. “[O]ut of deference to the States as separate sovereigns in our system of federalism, this Court should be reluctant to intrude into areas of traditional state concern, especially the law of marriage and domestic relations,” the brief argues.
The brief quotes the recent Windsor decision where “this Court emphasized the States’ authority to define and regulate the marriage relation without interference from federal courts.”
The states have traditionally been viewed as the “laboratories of democracy” and therefore the issue of marriage needs to be worked out there, the brief argues:
State democratic processes, not federal courts, are the fundamental incubators of change in public policy and social structure. The democratic process is fully competent, and better equipped than the federal judiciary, to mediate and resolve such “difficult and delicate issues.
The brief warns the Court is heading into “uncharted waters” in drawing “principled boundaries” in any new definition of marriage. The brief does not ask explicitly, but the question becomes, if marriage becomes something based on the feelings of adults, what is the principle that limits it to two or three or more people? And what limits it to those who are not related?
All told, the brief makes seven arguments and none attack LGBTs or even question them. The brief sticks strictly to arguments to Federalism arguments.
So, why are Rubio and Paul absent? The Paul camp has not been willing to go on the record and the Rubio campaign claims his views are well known and offered a handful of his public statements. However, the Rubio campaign did not answer why he did not sign the brief and take his views directly to the Supreme Court.