Marco Rubio’s super awkward confrontation with a gay voter, explained

By German Lopez

A gay voter had a very awkward confrontation with Marco Rubio on Monday in New Hampshire.

The moment began when 50-year-old Timothy Kierstead, who’s gay and married, asked Rubio, “Why do you want to put me back in the closet?” Rubio replied, “I don’t. You can live any way you want.” It went on, Michael Barbaro reported for the New York Times:

During a brief conversation, Mr. Kierstead, 50, told Mr. Rubio that he was married but complained that the senator’s position amounted to him declaring that “we don’t matter.”

Mr. Rubio, who was standing with his youngest son, Dominick, 8, by his side, gently disagreed. “No, I just believe marriage is between one man and one woman.”

“Well,” replied Mr. Kierstead, “that’s your belief.”

Mr. Rubio continued: “I think that’s what the law should be. And if you don’t agree you should have the law changed by a legislature.”

The confrontation ended with Kierstead loudly saying, “Typical politician. Walk away.”

Rubio’s underlying claim in the exchange was that legislatures — not courts or even the US Supreme Court — should “change” marriage laws. It’s a typical conservative response to the same-sex marriage issue, essentially framing the Supreme Court’s marriage equality decision as an example of court overreach.

But frankly, it’s ludicrous. Not only did New Hampshire’s legislature legalize same-sex marriage in 2009, but the entire point of the courts and particularly the Supreme Court is to enforce the US Constitution — and ensure that no law violates the nation’s highest legal document.

The courts, including a majority of the Supreme Court, by and large agreed that states’ same-sex marriage bans violated the Constitution. And it’s not hard to see why.

Why the Supreme Court ruled for marriage equality

In the case of marriage, the Supreme Court evaluated whether states’ same-sex marriage bans — which specifically exclude same-sex couples from marriage — violate the 14th Amendment, which is supposed to make sure that all laws are enforced for all groups of people in an equal way.

The 14th Amendment “was designed to, really, perfect the promise of the Declaration of Independence,” Judith Schaeffer, vice president of the Constitutional Accountability Center, told me last year. “The purpose and the meaning of the 14th Amendment is to make clear that no state can take any group of citizens and make them second-class.”

Given those circumstances, it’s not surprising that the Supreme Court found that state laws that explicitly exclude a whole group of people from the fundamental right to marry violate the 14th Amendment. (Some of the arguments in favor of banning same-sex marriage didn’t even deny that states’ bans were discriminatory; they instead said that the discrimination was justified to protect “traditional families.”)

The Supreme Court ruled similarly when it decided that excluding interracial couples from the right to marry also violated the 14th Amendment — a ruling that I doubt any mainstream Republican, including Rubio, would take issue with.

But marriage equality is, for now, treated differently by Republican politicians.

Republicans still oppose same-sex marriage

One possible explanation for Rubio’s position: politics.

While most Americans now support same-sex marriage, Republicans still lag behind the rest of the nation on this issue. A 2015 survey from Gallup found that 37 percent of Republicans support same-sex marriage — up from 19 percent in 2004, but still quite low compared with Democrats (76 percent) and independents (64 percent).

That puts Rubio in a pretty tricky position: He needs to walk the line between appealing to his Republican base and appealing to independents who overwhelmingly favor marriage equality and whom Rubio would likely need to win an election in November.

Rubio ultimately landed on favoring his base — perhaps out of personal conviction, or perhaps because it’s a better position for the Republican primary election. (We’ll see how or if his rhetoric changes in the general election — Vox’s Andrew Prokop noted that Rubio tends to leave these types of issues out of his speeches when talking to less partisan voters.)

So more than seven months after the Supreme Court’s historic ruling for marriage equality, the supposedly mainstream establishment candidate is still protesting it as an example of court overreach. And at least one gay voter was not happy with it.