U.S. Sen. Ted Cruz says the Supreme Court’s 2015 decision to overturn state bans on same-sex marriage as unconstitutional needs to be reconsidered.
“I think that decision was clearly wrong when it was decided,” Cruz said on his Verdict+ with Ted Cruz podcast on Sunday. “It was the court overreaching.”
In the 2015 case Obergefell v. Hodges, the high court ruled that state bans on same-sex marriage violate the rights of same-sex couples under both the Equal Protection Clause and the Due Process Clause of the U.S. Constitution.
The effect of the ruling was to strike down both statutory and constitutional bans in 35 states where same-sex nuptials were previously prohibited.
“Obergefell, like Roe v. Wade,” Cruz said, referencing the recently-overturned landmark 1973 decision guaranteeing that the right to obtain an abortion was protected under federal law, “ignored two centuries of our nation’s history. Marriage was always an issue that was left to the states. We saw states before Obergefell, some states were moving to allow gay marriage, other states were moving to allow civil partnerships. There were different standards that the states were adopting.”
Cruz also argued that, although it may be a slow process, the Constitution allows people with a particular stance on an issue to debate their point in public forums, gain support from fellow citizens, and lobby their state lawmakers to pass or amend laws as they see fit, with voters retaining the right to re-elect or replace elected officials based on their views on that issue.
“The way the Constitution set up for you to advance that position is to convince your fellow citizens, that if you succeeded in convincing your fellow citizens, then your state would change the laws to reflect those views,” he said.
“In Obergefell, the court said, ‘No, we know better than you guys do, and now every state must, must sanction and permit gay marriage,’ and now every state must sanction and permit gay marriage.”
Cruz’s remarks echoed those made by Associate Supreme Court Justice Clarence Thomas in a concurring opinion he authored defending the high court’s decision to overturn Roe v. Wade, thereby returning matters regarding the regulation of or restrictions on abortion to individual states.
In that opinion, Thomas called on the court to re-examine all cases dealing with “substantive due process” rights, referring to rights that have been conferred or recognized by courts, but are not explicitly mentioned in the U.S. Constitution.
Calling the legal logic undergirding all substantive due process cases “demonstrably erroneous,” Thomas suggested the Supreme Court reconsider and overturn its own precedents in the 1965 Griswold v. Connecticut ruling, which allowed married couples to buy and use contraception without government interference; the 2003 Lawrence v. Texas ruling overturning state laws criminalizing homosexuality and same-sex relations; and the 2015 Obergefell ruling.
Thomas and Associate Justice Samuel Alito had previously railed against Obergefell, arguing that the high court had overstepped its authority by legalizing same-sex marriage nationwide, subverting the democratic process and failing to take into account — by means of an exemption or other accommodation — the beliefs of people who oppose same-sex marriage on religious grounds.
As an example, they pointed to Kim Davis, the Kentucky county clerk who went to prison for contempt of court after refusing to allow her deputies to issue same-sex marriage licenses based on her personal objection to same-sex marriage.
While Cruz, a lawyer who served as the former Solicitor General for the state of Texas and is currently a member of the Senate Judiciary Committee, is himself a strict constitutionalist, he conceded that the Supreme Court may treat non-abortion “substantive due process” cases differently than it did Roe.
“In Dobbs, what the Supreme Court said is ‘Roe is different because it’s the only one of the cases that involves the taking of a human life and it’s qualitatively different,'” he explained. “I agree with that proposition.”
In the abortion case, Alito, writing for the court’s majority, argued that “‘nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,'” on the grounds that “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter uniquely involves what Roe and Casey termed ‘potential life.'”
However, LGBTQ advocates have argued that such language is not legally binding, and requires a neutral observer to trust that the court’s other conservative justices will not one day, on a whim, change their opinion and endorse the views laid out by Thomas in his concurrence.
Even some non-LGBTQ commentators are skeptical of Cruz’s claims.
CNN political commentator Margaret Hoover, a self-described conservative, accused Cruz of “pandering to bigots” when he suggested that Obergefell was wrongly decided, noting that the Texas Republican Party recently adopted a platform that refers to being gay as “abnormal,” and opposes any form of legal recognition for same-sex relationships.
“Let’s just be reminded that Ted Cruz is pandering not just to the base of the Republican Party but to the worst kind of bigotry in the Republican Party,” Hoover said during an appearance on CNN’s New Day. “All of this is circular inanity and pandering to the bigots.”
Hoover also said that Americans should not be “naive” about the possibility that the Supreme Court could overturn same-sex marriage — despite its increased support among a majority of Americans, and even among a majority of Republicans — pointing to the fact that abortion rights are also favored by a majority of Americans, yet Roe was still overturned, reports The Hill.
“The court has traditionally been afraid of being ahead of where the public, where public opinion is on any particular issue,” Hoover said.
“Seventy percent of the country is in favor of same-sex marriage now. … The country has gotten more in favor of same-sex marriage, not less. … You can’t be naive when they’re threatening fundamental rights anymore if you thought that nothing would have ever happened to Roe.”
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