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It's not the early aughts of your brother, Mr. Bush; time to update your discrimination justification

by Jeremy Hooper

Screen Shot 2015-01-05 At 8.34.34 Am With his home state of Florida poised to begin offering marriage licenses to same-sex couples as soon as today in some counties, former governor and likely candidate for the 2016 GOP presidential nomination, Jeb Bush, is offering more of his somewhat milquetoast thoughts on equality and its stewardship. Bush told the Miami Herald:

"It ought be a local decision. I mean, a state decision," the former governor said Sunday in a brief interview. "The state decided. The people of the state decided. But it's been overturned by the courts, I guess."
FULL: Jeb Bush: Gay marriages in Florida 'ought to be a local decision [Miami Herald]

This is such a 2004 answer. Sure, there's no talk of a Federal Marriage Amendment because everyone knows that's ridiculous. But acting as if we can remain a patchwork of laws, even as court after court determines that the fundamentals of the Bush-favored inequality are themselves broken, is just as ridiculous for the national conversation of 2015 and going forward. If Bush wants to make a serious go for it in '16, he's going to have to be a little more focused on where we are rather than where he might want us to be.

Yes, Florida residents voted for civil inequality. However, a series of court decisions notes the crude injustice therein. Rather than hide behind the reductive idea that the mean ol' courts "overturned" something, what does this GOP frontrunner think about the decisions that have led us here? Let's talk about what the courts say as justification for what they did, not just the trite ideas that they overreached and "overturned."

Does Mr. Bush believe that all minority rights should be decided by a majority vote, or are same-sex couples' civil marriage rights where he'll end the popularity contests of his theoretical presidency?

Since he will be campaigning in an America with a majority of states that are marrying gay couples without incident, will he try to convince the electorate that they've been somehow robbed and should be angry? Will he inject divisiveness where there is none?

Will he push for US Supreme Court nominees who think that the current court has wrongly decided on marriage (e.g. Windsor, the decision to not hear appeals, etc.)?

And what about the Equal Protection Clause, anyway? Do gay residents of Alabama and Mississippi really have to wait until over 50% of their fellows vote in favor of their full and equal citizenship before their protections under the U.S. Constitution are activated?

If Jeb Bush (and anyone else) wants to talk about marriage at all, then he (and they) will have to talk about an America that looks very different from the past campaigns. It was always reductive and wrongheaded to simply say "the states get to decide" and call it a day. But now it's also a fantasy. Just as I'd hope Mr. Bush wouldn't hinge his presidential capabilities on the fact that his brother and his father have already held the job, I'd hope he'd extend his marriage equality opposition beyond popularity contests (which were drummed up during his brother's administration, let's remember) that have already proven themselves to be callous, costly—and unconstitutional.

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