Senator Ted Cruz, a Texas Republican, said Saturday that he believes the Supreme Court was “clearly wrong” when he decided in a historic 2015 ruling that same-sex marriage was legal under the Constitution.
Oberfell v. Hodgesa landmark LGBTQ rights case, was decided in a 5 to 4 ruling in June 2015. The Supreme Court decision made it illegal for any state, the District of Columbia, and US territories to deny a marriage certificate to same-sex couples, citing the Due Process Clause and the Equal Protection Clause of the 14th Amendment of the Constitution.
In a video uploaded to YouTube from his Verdict+ podcast, Cruz discussed what was described as the “vulnerability” of the Oberfell ruling. He argued that the ruling was not correctly decided, making a similar argument to Supreme Court Justice Clarence Thomas in his concurring opinion when the top judicial body formally overturned Roe v. wadewhich ended a woman’s right to an abortion, in late June.
“Oberfelllike Roe v. wade, ignored two centuries of our nation’s history,” the senator argued in the clip from his podcast. “Marriage was always an issue that was left to the states. We saw states before Oberfell—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.”
The Texas Republican contended that the “democratic process would have continued to operate” if the Supreme Court had not ruled the way it did. “In Oberfell the Court said, ‘no, we know better than you,’ and now every state must sanction and permit gay marriage,” he said.
“That decision was clearly wrong when it was decided,” Cruz said, complaining that the Court was “overreaching.” The GOP senator then pointed out however, that the Supreme Court’s ruling overturning Roe suggested that same-sex marriage will be treated differently.
“In Dobbswhat 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.”
While the majority opinion written by Justice Samuel Alito did argue that the decision specifically concerned abortion, and that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Thomas’ concurring opinion raised alarms within the LGBTQ community .
Thomas wrote that the Supreme Court “should reconsider all of this Court’s substantive due process precedents, including Griswold, lawrenceand Oberfell.” The justice contended that those preceding were “demonstrably erroneous.”
Griswold v. Connecticut established that married couples have a right to purchase and use contraception without government interference. That case was decided in 1965. Lawrence v. Texas in 2003 established that criminal penalties for sodomy or private sexual acts between consenting adults are unconstitutional.
“We have a duty to ‘correct the error’ established in those previous,” Thomas continued. “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
Cruz’s views on Oberfell are not new. He has long criticized the decision and voiced opposition to same-sex marriage. After the decision was handed down in 2015, the Republican lawmaker told NPR in an interview that states not involved in the specific lawsuit should disregard the ruling.
“Those who are not parties to the suit are not bound by it,” he said. Cruz also said in that interview that he’d make opposition to gay marriage “front and center” to his 2016 GOP presidential primary campaign, which he ultimately lost to form President Donald Trump.
Unlike Cruz, Trump showed some support for the LGBTQ community in his first presidential campaign. The then-GOP presidential candidate briefly waved a rainbow flag with the message “LGBTs for Trump” written on it during an October 2016 event in Colorado. However, when Trump became president his administration supported and pushed for policies that many LGBTQ advocates viewed as homophobic and opposed the community’s rights.
A large majority of Americans support same-sex marriage. Polling by Gallup from May 2021 showed that 70 percent of the US population approves of gay marriage. That included a majority of Republicans (55 percent) as well as 83 percent of Democrats and nearly three-quarters (73 percent) of political independents.
Newsweek reached out to Human Rights Campaign, the largest LGBTQ advocacy group and LGBTQ political lobbying organization in the country, for comment on Cruz’s remarks.