January 29, 2015 at 5:32 pm EST | by Chris Johnson
Graham wants Supreme Court to uphold marriage bans
Lindsey Graham, United States Senate, South Carolina, Republican Party, gay news, Washington Blade

Sen. Lindsey Graham (R-S.C.) indicated support for a planned marriage amendment in Congress. (Washington Blade photo by Michael Key)

One day before comparing marriage equality to polygamy, Sen. Lindsey Graham (R-S.C.) added his name to the list of potential 2016 presidential contenders who are looking to the Supreme Court to uphold state bans prohibiting same-sex marriage.

Speaking to the Washington Blade in the U.S. Capitol on Tuesday, Graham had little to say when asked about pending litigation before the court, but made his position clear.

“I hope the court will allow each state to define marriage within its borders,” Graham said.

Graham was cautious about endorsing a constitutional amendment planned by Sen. Ted Cruz (R-Texas) that would prohibit courts from overturning state marriage laws, but expressed an openness to the measure.

“I have to look at it, but it sounds like a sound idea,” Graham said. “But I’ll have to look at it.”

Graham, who has set up an exploratory committee to evaluate a potential 2016 bid for the White House, made the comments after the U.S. Supreme Court agreed this month to hear same-sex marriage lawsuits and amid anticipation justices will hand down a nationwide ruling by the end of June.

Federal courts have already ruled in favor of marriage equality in Graham’s own state of South Carolina. The state has appealed the decisions, but the U.S. Fourth Circuit Court of Appeals has placed the proceedings on hold until a decision comes down from the Supreme Court.

Meanwhile, state legislators in South Carolina have introduced legislation that would cut off funds for distributing marriage licenses to same-sex couples and would allows clerks to refuse a license to same-sex couples if doing so would violate a religious belief.

Gregory Angelo, executive director of the Log Cabin Republicans, said Graham’s response is unsurprising given the senator’s lack of outreach to the organization.

“No surprises here,” Angelo said. “Sen. Graham has never been a marriage equality supporter and is one of the few Republican senators who has had a less-than-cordial relationship with Log Cabin Republicans. Throwing his support behind a federal marriage amendment would only add his name to the list of the usual suspects trumpeting this non-starter.”

Graham made the comments to the Blade prior to the exchange he had on Wednesday during the confirmation hearing for Loretta Lynch, whom President Obama has nominated as the next U.S. attorney general.

During the Senate Armed Services Committee hearing, Graham suggested a court ruling in favor of same-sex marriage would be a slippery slope leading to recognition of polygamy.

“If the Supreme Court rules that same-sex marriage bans are unconstitutional, it violates the Constitution for a state to try to limit marriage between a man and a woman, that’s clearly the law of the land unless there’s a constitutional amendment to change it, what legal rationale will be in play that would prohibit polygamy?” Graham asked.

“What’s the legal difference between a ban on same-sex marriage being unconstitutional but a ban on polygamy being constitutional?” Graham continued. “Could you try to articulate how one could be banned under the Constitution and the other not?”

The U.S. Justice Department has pledged to file a friend-of-the-court brief in favor of the pending litigation before the Supreme Court. Lynch demurred in response to Graham’s question.

“Well, senator, I have not been involved in the argument or analysis of the cases that have gone before the Supreme Court,” Lynch replied. “And I’m not comfortable undertaking legal analysis without having had the ability to undertake a review of the relevant facts and the precedent there. So I certainly would not be able to provide you with that analysis at this point in time, but I look forward to continuing the discussions with you.”

Despite Lynch’s non-answer to Graham’s question, the senator seems satisfied with the nominee. According to media reports, Graham has said he’s inclined to support her confirmation.

Evan Wolfson, president of Freedom to Marry, said Graham’s remarks to the Blade suggest a lack of understanding of the judicial system.

“States regulate marriage subject to the Constitution, which guarantees all Americans the freedom to marry and equal protection of the law,” Wolfson said. “Courts are there to protect us when politicians, states or the federal government deny the inalienable rights guaranteed in the Constitution, as when the Supreme Court struck down state bans on interracial marriage. Which part of that would Senator Graham change — the freedom to marry that belongs to all? The federal guarantee of equal protection? The supremacy of the Constitution? Or the checks and balances in our Constitution, which courts exist to enforce?”

Neither the Human Rights Campaign nor the Democratic National Committee responded to the Blade’s request for comment on Graham’s remarks.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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