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The GOP's Other Convention Conflict: The 14th Amendment

April 11, 2016

The odds of a contested Republican convention rose sharply this week. The strong showing by Senator Ted Cruz (R-TX) in the Wisconsin primary made frontrunner Donald Trump's task of securing a 1,237 delegate majority a much steeper climb. The prospect of an all-out, multi-ballot floor fight elevating Cruz, Ohio Governor John Kasich or some Republican white knight like House Speaker Paul Ryan over a nearly-victorious Trump could ignite a firestorm inside and outside Cleveland's Quicken Loans Arena.
But the potential for a GOP "Mistake by the Lake" isn't the only reason why the party's convention could produce the worst Republican conflagration in Cleveland since Mayor Ralph Perk set his own hair ablaze with a blow torch in 1972. The war over who will stand for the Republican Party will be joined by another over what the GOP stands for. At the heart of the convention's bruising platform battles over its abortion and same-sex marriage planks is one of the greatest accomplishments of the Party of Lincoln. Simply put, the fiercely divided delegates will have to decide whether the GOP believes the 14th Amendment's due process and equal protection guarantees for "all persons born or naturalized in the United States" apply to fetuses but not actual living, breathing gay Americans.

Four years ago, the 2012 Republican platform decried "the court-ordered redefinition of marriage in several States" which it deemed "an assault on the foundations of our society, challenging the institution which, for thousands of years in virtually every civilization, has been entrusted with the rearing of children and the transmission of cultural values." But in the intervening years, the earth shifted under the Republicans' feet. After Barack Obama administered a beat-down on Mitt Romney, the RNC commissioned an "autopsy" which among other things concluded Republicans "must 'change our tone' on certain social issues to win over younger voters and reach out to gay Americans." While avoiding specific policy prescriptions, RNC Chairman Reince Priebus declared:

"I think it's about being decent. I think it's about dignity and respect, that nobody deserves to have their dignity diminished."

Justice Anthony Kennedy could not have agreed more. In his popular majority opinion in the landmark 2015 case of Obergefell v. Hodges, Kennedy put dignity--and the Constitution's 14th Amendment--at the center of his argument for making marriage equality the law of the land. The culmination of two decades of extending the framework 14th Amendment's due process and equal protection guarantees to gay Americans, Kennedy's Obergefell opinion proclaimed:

It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Now, the Republican Party must decide whether to try to take back from LGBT Americans what the Supreme Court ruled the Constitution gives them. And as Politico reported this week, Republicans are at loggerheads over the burning the question of how to handle same-sex marriage at the convention in Cleveland.

Republicans, already girding for their most tumultuous convention in decades, now have another fight brewing: a divisive battle over gay marriage on the party's official national platform.
It's an issue that drives intense passion, and one that splits the mainstream and evangelical wings of the GOP. With the convention less than four months away, both sides are mobilizing in anticipation of a bitter clash over whether the party should embrace a more moderate approach to gay nuptials, in keeping with a public that is more open to it, or maintain the hard line the party's base demands.

The candidates headed to Cleveland reflect that split. In February, Ohio Governor John Kasich proclaimed, "Let me clear, I'm for traditional marriage, but I've been to my first gay wedding." Nevertheless, he concluded, "The court has spoken. That's the end of it." In keeping with his gymnastic flip-flops, Donald Trump ultimately promised evangelicals they could "trust me" on traditional marriage because "I would be very strong in putting certain judges on the bench that maybe could change things." But Ted Cruz has gone much further, calling the Supreme Court's marriage equality ruling "fundamentally illegitimate, it was lawless, it was not based on the Constitution" and adding that other states "are not bound" by it. Unhappy with the Court's interpretation of the 14th Amendment in Obergefell, Cruz wrote last June:

I have already introduced a constitutional amendment to preserve the authority of elected state legislatures to define marriage as the union of one man and one woman, and also legislation stripping the federal courts of jurisdiction over legal assaults on marriage.

The question for Republicans in Cleveland centers on what responses, philosophical and legal, will be enshrined in the 2016 GOP platform. "Some of the party's biggest financiers, attempting to transform the GOP's approach, have been helping to bankroll the American Unity Fund, a group that has launched a well-organized, behind-the-scenes effort to lobby convention delegates who will draw up the platform," Politico's Alex Isenstadt explained, "It is asking them to adopt language that would accommodate same sex marriage." But conservative moneymen like Paul Singer, Dan Loeb, Seth Klarman and Cliff Asness looking to moderate the party's tone on social issues will face a wall of opposition the GOP's conservative grassroots:

During a recent meeting with Republican National Committee Chairman Reince Priebus, some evangelical leaders expressed concern about the pro-gay marriage push, according to one activist who was present.
"Conservative forces need to understand there is a serious challenge, and they need to take it seriously," said Jim Bopp, an influential social conservative activist who helped to craft the GOP platform in 2012.
"We're prepared for the fight," said Ed Martin, the president of Eagle Forum, a leading evangelical group. "It's hand-to-hand combat."

Certain to be leading the counterattack is Tony Perkins of the Family Research Council. Perkins played a key role in drafting the 2012 platform and its call for a constitutional amendment codifying marriage as a union between one man and one woman. Perkins also happens to be a member of Cruz' Religious Liberty Advisory Council which, among other things, supports state and federal laws which would protect individuals and institutions from government penalties for violating antidiscrimination laws if they were acting "in accordance with a religious belief or moral conviction" against same-sex marriage. (Ted Cruz has been a vocal proponent of so-called "Religious Freedom" laws in Indiana, Georgia, Mississippi and other states.) And their ilk is likely to enjoy the signers of "The Marriage Pledge," a who's who of the social conservative movement who compared the Court's Obergefell ruling to the its infamous 1857 Dred Scott decision, thereby essentially declaring that gay Americans have no rights which the straight man was bound to respect:

We will view any decision by the Supreme Court or any court the same way history views the Dred Scott and Buck v. Bell decisions. Our highest respect for the rule of law requires that we not respect an unjust law that directly conflicts with higher law. A decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order. As people of faith we pledge obedience to our Creator when the State directly conflicts with higher law. We respectfully warn the Supreme Court not to cross this line.

Or as Senator Marco Rubio (R-FL) put it in November before his own presidential campaign flamed out:

"We are clearly called in the Bible to adhere to our civil authorities. But that conflicts with also our requirement to adhere to God's rules. So when those two come in conflict, God's rules always win."

Only, that is, if you rig the United States Constitution so that the 5th and 14th Amendments don't apply to LGBT Americans and do apply to fetuses.
That second gambit has been part and parcel of the Republican platform for two-decades. Despite the fact neither John McCain nor Mitt Romney supported banning abortion in all cases including rape and incest, the GOP platform demanded a complete prohibition even when a woman's life was at risk. That's why the 2012 GOP Platform, like those before it, called for a so-called "Human Life Amendment":

Faithful to the "self-evident" truths enshrined in the Declaration of Independence, we assert the sanctity of human life and affirm that the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children.

But by 2016, the Republican landscape had changed again. Despite, or perhaps precisely because of, the failure of so-called "personhood" initiatives in Colorado, Mississippi and South Dakota, many GOP candidates now insist that the Constitution already provides embryonic due process and equal protection guarantees. Viewers of the August 7, 2015 GOP debate bore witness to the immaculate conception of this "Fetal Fourteenth." After Fox News host Megan Kelly informed the candidates that New York Cardinal Timothy Dolan had called rape and incest exemptions "preposterous" and said "they discriminate against an entire class of human beings," Marco Rubio (R-FL) offered this novel--and preposterous--constitutional theory:

"I've advocated passing a law that says that all human life, at every stage of its development, is worthy of protection--in fact, I believe that law already exists. It's called the Constitution of the United States."

While Rubio wouldn't offer specifics, former Baptist Minister, Arkansas Governor and Fox News regular Mike Huckabee did. Huckabee, who never shies away from comparing abortion to slavery and the Holocaust, simply ignored 42 years of Supreme Court precedent since Roe v. Wade:

"I think the next president ought to invoke the Fifth, and Fourteenth Amendments to the constitution now that we clearly know that that baby inside the mother's womb is a person at the moment of conception.
The reason we know that it is is because of the DNA schedule that we now have clear scientific evidence on. And, this notion that we just continue to ignore the personhood of the individual is a violation of that unborn child's Fifth and 14th Amendment rights for due process and equal protection under the law."

(Leave aside for the moment would-be President Huckabee's confusion over the separation of powers or his delusions about deploying troops to round up abortion providers. Under Huckabee's theory, fetus-bearing women would be eligible for a host of other protections and benefits, perhaps including health coverage, welfare payments and housing assistance. As Al Franken put it years ago, for conservatives "life begins at conception and ends at birth." And while there are roughly four million live births and one million abortions annually in the United States, an estimated 15 to 20 percent (and potentially a much larger share) of pregnancies end in miscarriage. To put it in terms Governor Huckabee and Senator Rubio would understand, apparently the Supreme Being--and not the Supreme Court--is the bigger threat to fetal 14th Amendment rights.)
Not all of the remaining Republican contenders headed to Cleveland agree with Rubio and Huckabee. Donald Trump has rapidly mutated from being pro-choice to demanding "some form of punishment" for women obtaining abortions to lamenting that "The laws are set now on abortion and that's the way they're going to remain until they're changed." John Kasich says he believes in allowing abortions in cases of rape and incest, but nevertheless has signed a raft of TRAP (Targeted Regulation of Abortion Providers) bills which have shuttered most of the clinics in Ohio. Ted Cruz has had an evolution as well, supporting the GOP's Human Life Amendment and personhood measures in Georgia and South Carolina while also declaring that he, like Huckabee and Rubio, believes the 14th Amendment already protects embryos, zygotes and fetuses. As he explained to Princeton Professor Robert George in December:

GEORGE: Now, do you believe that unborn babies are persons within the meaning of the Equal Protection Clause of the Fourteenth Amendment, and if so will you call on Congress to use its authority under the Fourteenth Amendment, pursuant to Section 5, to protect the unborn? Or do you take the view, as some do, that we can't do that until Roe v. Wade is overturned, either by the court itself or by constitutional amendment? Where do you stand on that?
CRUZ: Listen, absolutely yes. I think the first obligation of everyone in public office is to protect life. Life is foundational. In fact, as you look at the Declaration, that ordering of unalienable rights, life, liberty, and the pursuit of happiness, I think it's a very deliberate ordering. Without life there is no liberty, and without liberty there is no pursuit of happiness. That each builds upon the other, and I very much agree with the Pope's longstanding, and prior popes before him, longstanding call to protect every human life from the moment of conception to the moment of natural death.

And it is his belief in the Fetal Fourteenth that enables Senator Cruz to demand that women, as Megan Kelly of Fox News put it, "go through unspeakable trauma to carry her rapist's baby for nine months."

"Well, listen, let's talk - you know, when it comes to rape, I've spent a lot of years in law enforcement. I was the solicitor general in the state of Texas and I have handled cases with horrific cases of rape, of people who committed child rape, people - I went before the U.S. Supreme Court and argued in defense of state laws imposing capital punishment for the very worst child rapists. And when it comes to rape, rape is a horrific crime against the humanity of a person and needs to be punished and punished severely but at the same time, as horrible as that crime is, I don't believe it's the child's fault. And we weep at the crime. We want to do everything we can to prevent the crime on the front end and to punish the criminal, but I don't believe it makes sense to blame the child."

Apparently, that logic is precisely why the National Right to Life Board of Directors just endorsed Ted Cruz for President. It's also why the battle for delegates in states like Colorado promises to make the conflict in Cleveland all the more explosive. As the Washington Post reported on Friday, "the state's Republicans are meeting last weekend to finalize a slate of 37 delegates to the Republican National Convention in Cleveland in July." Along with Cruz and Kasich, some 600 candidates were to address a Colorado Springs arena in hopes of securing a delegate spot:

Unlike other states where campaigns spent millions of dollars on rallies and television commercials, winning support in Colorado requires more time-consuming, arduous effort that leads to people like Kendal Unruh.
The anti-abortion activist from Castle Rock, Colo., has attended seven Republican national conventions and has helped write the party's official platform. This year, Unruh is organizing a slate of like-minded, anti-abortion activists to run for Colorado delegate slots. Their main goal is to ensure that the GOP maintains its staunch anti-abortion position. Her second goal is to elect Cruz as president.

When all is said in done on the shores of Lake Erie in July, people like Kendal Unruh may well decide whether Donald Trump, Ted Cruz, John Kasich wins the Republican Battle for the Nomination in the Best Location in the Nation. Those same Republicans will also decide whether the 14th Amendment, ratified on July 9, 1868, means what it says about "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." As the late Justice Antonin Scalia so revealing proclaimed in the 2013 Schuette affirmative action case, "I thought we rejected" the argument "that it protected only the blacks." When it comes to abortion, the Republican National Convention may well find that the 14th Amendment protects fetuses, but not women. And when it comes to the RNC's view of marriage, due process and equal protections of the laws apparently don't apply to gay Americans, either.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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