ROBERT SIEGEL, HOST:
Republican presidential candidate Ted Cruz is making a case for ignoring last week's Supreme Court ruling that legalized same-sex marriage. Some states have made early moves at defiance, and Senator Cruz is offering a legal rationale they might use. He spoke with NPR's Steve Inskeep.
STEVE INSKEEP, BYLINE: We were talking yesterday as Senator Cruz prepares to release a book. It details his past as a Supreme Court clerk and then as a lawyer who argued cases before the court. He's been reading the justices' opinions on marriage, including the dissents. Justice Antonin Scalia warned that the court is weak. It depends on states or the president to enforce its rulings. And rulings, like the marriage case, risk proving the Court's, quote, "impotence," according to Scalia. That led me to ask Senator Cruz this question.
Would you encourage state or federal officials who disagree with that ruling to ignore it or defy it in any way?
TED CRUZ: You know, you're right that the final paragraph of Justice Scalia's dissent was an ominous paragraph. What Justice Scalia was saying was that these decisions are fundamentally illegitimate, that his colleagues on the Court are not following their oaths.
INSKEEP: And Senator Cruz went on to suggest that the Court's sweeping nationwide ruling is actually quite limited.
CRUZ: The Courts have the authority to decide cases and controversies between particular individuals. But there is no obligation on others in government to accept the Court as the final arbiter of every constitutional question. Indeed, every officer takes an oath to uphold the Constitution
INSKEEP: Did I just understand you to suggest that state officials should feel no particular obligation to follow the Court ruling if they feel it's illegitimate?
CRUZ: They should feel no obligation to agree that the court ruling is right or is consistent with the Constitution. This ruling...
INSKEEP: But does that mean they can ignore it?
CRUZ: They cannot ignore a direct judicial order - the parties to a case cannot ignore a direct judicial order, but it does not mean that those who are not parties to the case are bound by a judicial order. And that's what Justice Scalia was saying in his dissent, which is that the Court depends upon the remainder of government trusting that it is faithfully applying the law. And these judges and justices are disregarding their oaths.
INSKEEP: Senator Cruz says officials not directly involved in this case are free to conclude for themselves that the ruling is unconstitutional. Under that theory, opponents could then be saying to the Court what are you going to do about it? Some states have made initial moves in that direction. Louisiana's attorney general says the ruling did not specifically name his state. The attorney general of Texas says county clerks may object on religious grounds to issuing marriage licenses. So we checked out Cruz's theory with Melissa Murray, who is a law professor at the University of California, Berkeley.
MELISSA MURRAY: The United States Supreme Court may not have the power of the purse and the sword like Congress or the executive - Alexander Hamilton famously called the Court the least dangerous branch because it lacked the kind of power to enforce its own judgments. But the fact of the Supreme Court judgment - the fact that the Supreme Court has the power to interpret the law is a power in and of itself.
INSKEEP: Suppose there was a state where the attorney general or the governor, or even some county clerk, just said this ruling doesn't apply to me. What would the natural course of events then be?
MURRAY: Well, we have a perfect template historically. This is exactly what happened in the wake of Brown versus Board of Education.
INSKEEP: That was the 1954 Supreme Court ruling to desegregate public schools. Many Southern states defied that ruling and here's what happened - more people sued, more court rulings found that desegregation was the law of the land. Finally, President Dwight Eisenhower sent in federal troops to enforce it. In our conversation, Senator Ted Cruz acknowledged that if people ignore a Supreme Court order, more court cases may well follow. But he is suggesting that cultural conservatives may be ready to fight those court cases, defending what they call religious liberty. Steve Inskeep, NPR News. Transcript provided by NPR, Copyright NPR.