What Ted Cruz Got Wrong About Gay Marriage And The Supreme Court

Anticipating action by the Supreme Court's right-wing majority, Senator Ted Cruz last week said the 2015 Supreme Court decision that legalized same-sex marriage nationwide was “clearly wrong.”

Asked about the landmark case, Obergefell v. Hodges, in a video posted to YouTube from his podcast, he claimed, “Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history,” he claimed.

For many, his comments come as no surprise. In his concurring decision on Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas seemed to put a target on the landmark LGBTQ+ case, claiming that the court “should reconsider” its decision in Obergefell.

So Cruz’s comments seem to be merely doubling down on Clarence Thomas’ threat to same-sex marriage. “Marriage was always an issue that was left to the states,” said Cruz. He went further, saying that the Obergefell decision “was the court overreaching.”

But he’s wrong. The United States Congress has passed federal legislation regulating marriage previously, and the Supreme Court has decided cases enforcing those laws over the past “two centuries of our nation’s history.” As early as 1862, Congress passed the Morrill Anti-Bigamy Act, which prevented a person from being married to more than one individual at a time, later amended and strengthened by the Edmunds Anti-Polygamy Act 1882.

Both laws were later upheld by the Supreme Court in Reynolds v. United States (1879) and Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States (1890). Congress also passed the Defense of Marriage Act in 1996, defining a marriage as a union between one man and one woman, which was ultimately struck down by the Court’s decision in Obergefell.

The majority opinion in Obergefell largely rested on precedent from previous cases, including the seminal civil rights case Loving v. Virginia (1967), which struck down laws that made interracial marriage illegal. The court echoed the words of Loving in its opinion on Obergefell, claiming that marriage, and the freedom to choose one’s spouse, is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Consequently, the court concluded that “the right to marry is a fundamental right inherent in the liberty of the person, and…couples of the same-sex may not be deprived of that right and that liberty.”

Given the connection between the rights of interracial couples and same-sex to marry, Justice Thomas’ desire to revisit the court’s decision on Obergefell is odd. Would a reconsideration of the principles undergirding the Obergefell decision force the Court to reconsider its ruling in Loving? Given that Justice Thomas, only the second African American to serve on the Supreme Court, is married to a white woman, perhaps he should not throw stones.

To avoid directly stating his own aversion to same-sex relationships, Cruz instead complained that the Court prematurely truncated the democratic process. “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. And had the court not ruled in Obergefell, the democratic process would have continued to operate,” Cruz claimed. “In Obergefell, the court said, 'No, we know better than you guys do, and now every state must, sanction and permit gay marriage.'”

Cruz’s words are oddly reminiscent of the "moderates" in Martin Luther King’s Letter from Birmingham Jail, who urged civil rights activists to “wait” for more gradual change. Yet the Court anticipated and answered this objection in its decision. In his majority opinion for the Court, Justice Anthony Kennedy cited Schuette v. BAMN, noting that “when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decision-making. The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”

Perhaps Cruz and Thomas’ opposition to the expansion of human rights is not because of its timing, but because, as Dr. King observed, “privileged groups seldom give up their privileges voluntarily.”