Tea Party Favorite Ken Cuccinelli Backs Rick Perry, Michele Bachmann On Gay Marriage And States' Rights

WASHINGTON -- Support for marriage equality is not a popular position among those in the 2012 Republican primary field. All of the major candidates oppose it. Former Utah governor Jon Huntsman is the only one to even back civil unions.

But increasingly, there is also a subtle divide between Republicans who believe that states have the right to allow same-sex marriage, and those who think they don't.

On Wednesday, the states' rights proponents received a boost from one of the Tea Party's favorite politicians, Virginia Attorney General Ken Cuccinelli (R), who said the best course on marriage might be to "leave it to each state."

When New York legalized same-sex marriage, Rep. Michele Bachmann (R-Minn.) commented, "That is up to the people of New York. I think that it’s best to allow the people to decide on this issue. I think it's best if there is an amendment that goes on the ballot, where people can weigh in."

Similarly, Texas Gov. Rick Perry (R), who has not yet jumped into the presidential field, said last month he was "fine with" states allowing gay individuals to wed, although he personally opposed the practice. He was quickly criticized by former Pennsylvania Senator Rick Santorum, a presidential candidate.

"States do not have the right to destroy the American family. It is our business," he said. "It is not fine with me that New York has destroyed marriage. It is not fine with me that New York is setting a template that will cause great division in this country."

"Washington needs a refresher course on the 10th Amendment," Perry said in response.

The 10th Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

On Wednesday, Cuccinelli referenced the 10th Amendment and expressed his support for states' rights in an interview with Ryan Nobles of NBC12 News in Richmond, Va.

Cuccinelli, a favorite of Tea Party activists, made clear that he opposes same-sex marriage, but also noted the only way it can be outlawed nationally is through a constitutional amendment.

"I think it was in 1971 or 1974, the Supreme Court ruled marriage is not a subject that the federal government can exercise jurisdiction over, including the courts. To do that, we would need an amendment to the Constitution," he said in the interview. "Now the only amendment I would expect to see to the Constitution would be a nationwide protection of traditional marriage and restricting marriage to one man and one woman."

Nobles then asked about the Defense of Marriage Act, which defines marriage federally as between one man and one woman, and therefore deprives individuals in same-sex relationships from federal benefits afforded to heterosexual married couples. It doesn't, however, necessarily outlaw marriage equality in the states, a point which Cuccinelli conceded.

"There doesn't have to be uniformity," he added. "I certainly see that as one possible course that we get on. There's nothing constitutionally or historically that demands that this be addressed uniformly across the country. Frankly, I think it's worth some consideration for the things that aren't reached by the federal constitution, to just leave it to each state. That's where abortion law was before Roe v. Wade."

Cuccinelli is certainly no supporter of LGBT rights. In the past, he has said that homosexual acts are "intrinsically wrong" and "not healthy" to society. So his declaration that states should have the right to implement same-sex marriage pleasantly surprised a national gay and lesbian Republican organization.

"The Cuccinelli position surprised me," said Christian Berle, deputy executive director of the Log Cabin Republicans. "He is somebody who rarely has found anything but negative to say about gay and lesbian Americans. I think Santorum has said a few things here and there during his tenure, but it is very difficult to find something from Ken Cuccinelli."


Conservatives often invoke the 10th Amendment to combat the federal government's intervention on issues like health care and child labor laws.

But when it comes to marriage equality, they have been more hesitant to invoke the amendment.

"The 10th Amendment and states' rights is very important to conservatives, but it's not our highest value," Gary Bauer, president of the conservative advocacy group American Value, told RealClearPolitics. "There are some things so fundamentally wrong that we have not left those things up to the states."

Santorum also seems to take this view. But other traditionally strong social conservatives, like Bachmann, Perry and Cuccinelli, apparently believe states have the right to legalize same-sex marriage, unless there is a constitutional amendment banning the practice -- an idea they wholeheartedly back.

Berle said the push for a constitutional amendment isn't likely to go anywhere, in large part because a growing portion of the American public has come to support same-sex marriage.

"I do believe that candidates talking about the 10th Amendment and states' rights reflects a movement nationwide in the view towards gay and lesbian Americans and same-sex relationships," said Berle. "I think a number of leaders, whether they be presidential candidates, whether they be members of Congress, believe that pushing for a constitutional amendment is a win-win situation. It can please their base -- these are individuals who are not going to make strides across the aisle -- and [lawmakers] recognize it's never going to get out of Congress."


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