What Ted Cruz Actually Said to Liz Wheeler on Same-Sex Marriage July 16

On Saturday, July 16 – ironically, the same day as San Diego's 2022 Pride Parade – Senator Ted Cruz (R-Texas_ gave an interview to podcast host Liz Wheeler which was reported on Queerty.com, https://www.queerty.com/ted-cruz-says-supreme-court-clearly-wrong-sex-marriage-ruling-20220718. as Cruz saying the U.S. Supreme Court's landmark decision on Obergefell v. Hodges, in which the Court found a constitutionally protected right to same-sex marriage, was wrong and should be overturned.

The post was accompanied by a 17-second clip from the full interview, and some commentators pointed out that Cruz's statements had been considerably more nuanced. In the full clip – or at least the six-minute excerpt posted by the Queerty commentator – Cruz tied hmiself into verbal knots trying at once to reassure his political base that he thinks Obergefell was wrong from the get-go while also trying to assure Queer people and their allies that the Court probably won't overturn it any time soon. It's somehow dawned even on Cruz's notoriously think skull that telling hondreds of thousands of Americans involved in same-sex marriages (including yours truly) that their marriages are no longer valid could lead to social chaos. Cruz also said that same-sex marriage is a less "divisive" issue than abortion and therefore the Court may just decide to leave it alone.

I'm not at all convinced by Cruz's reasoning. In his concurringi opinion in Dobbs v. Jackson Women's Health Center, the Court opinion overruling Roe v. Wade, Justice Clarence Thomas said that if the Court no longer reads the Constitution as guaranteeing an individual's right to personal privacy, there are a number of other cases the Court should look at and reverse, including Griswold v. Connecticut, which allowed married straight couples to use birth control; Lawrence v. Texas, which established a right for pconseltuing adults of the sane gemder to have sex; and Obergefell. Thomas's concurrence has raised the spectre of a future in which government establishes itself as the ultimate arbiter of what people can do in their bedrooms and how they can deal with the consequences – desirable and not – therefrom.

Cruz's attempt to reassure us that the current radical-Right revolutionary majority in the U.S. Supreme Court (which by no means should be called "conservative") likely as not won't rule that states have the option to make same-sex marriage legal or illegal, as they see fit, is especially not reassuring in light of the statement Thomas and fellow Justice Samuel Alito made in October 2020 that thel felt Obergefell violated the Costitutional right to "free exercise" of the religious beliefs of people who belong to religions opposed to same-sex marriage. (This itself begs the question of how and why members of churches who believe in marriage equality should have fewer rights than members of churches that don't.) It's clear that a broad array of individual rights and freedoms are on the current Supreme Court's chopping block.

– Mark Gabrish Conlan, July 20, 2022

The show’s host, Liz Wheeler, asked Senator Ted Cruz (R-Texas), “If you were an advocate and Obergefell was before the Supreme Court again, what would be the argument against this case or the argument for overturning it?”

Cruz replied, “So look, O)bergefell, like Roe v. Wade, ignored two centuries of our nation’s history. Marriage was always an issue that was left to the states. We saw states before Obergefell that were moving to allow Gay marriages, moving to allow civil partnerships. There were different standards that were evolving. And had the Court not ruled on Obergefell, the democratic process would have continued to operate,

“So if you think that [same-sex] marriage was a good idea, what you have to do to advance that position is to engage your fellow citizens. If you succeeded in convincing your fellow citizens, your state would change its laws to reflect those views. In Obergefell, the Court said we know better than you guys do, and so as of now every state must sanction and perform – and permit – Gay marriage.

“I think that decision was clearly wrong when it was decided. It was the Court overreaching. Whether or not the Court will reverse it, I will say, so in Dobbs what the Supreme Court said was Roe is different because it’s the only one of the cases that involves the taking of a human life, and that’s qualitatively different. I agree with that proposition. That is fundamentally different.

“I will say on Obergefell that it is also, when a Court is considering overturning a precedent, one of the factors that the Court looks into is reliance interest. Have people relied on the previous precedent, and have they acted accordingly? And in the context of marriage, look, you’ve got a ton of people who have entered into Gay marriages and it would be more than a little chaotic for the court to do something that somehow disrupted those marriages that have been entered into in accordance with the law.

“I think that would be a factor that would, would counsel restraint, that the court would be concerned about. But to be honest, I don't think this Court has any appetite for overturning any of these decisions. I think Justice Thomas was being a purist in terms of what the Constitution means, but I don’t think there are other Justices interested in going down that road.”

Wheeler said, “No, it doesn’t seem like that, just given the sheer number of times Alito reiterated in his majority opinion that this did not have any bearing on Griswold, Lawrence or Obergefell. So let me ask you: I think that your take is correct. It’s pretty clear that Obergefell is an invented ‘right’ – I say that in quotes, because it is invented by the Court – but how does a Court determine when an issue that could be left to the states, because we embrace this idea of democracy, the states can be a laboratory for democracy, and if they vote one way and you don’t like it, you can move to another state that’s voted another way?

“How do they determine when an issue is so enormous that it needs to be decided at a federal level, and Gay marriage might actually be one of those? Some folks argue that, well, if you got married in California but you weren’t married in Texas because California recognized a Gay marriage but Texas didn’t, there has to be some clarity at the federal level here. What is, or what should be, the standards for determining whether an issue should be left to the states, or whether it requires a national policy?”

Cruz replied, “Well, the standard should be where the Constitution puts the authority. And with respect to marriage, the Constitution gave the authority to the states. And then that’s – that’s what I think the Court should have done. I think Obergefell was wrongly decided.

“At the same time, the standard for overturning a decision – and this is something the court in Dobbs talks about at great length – involves a number of factors, One, if it was egregiously wrong from the start. But two, whether the precedent has proven unworkable; whether it has essentially created more problems. And what the Dobbs majority said is that Roe continued to be unworkable and had enormous problems.

“I have not seen anyone marshal arguments that Obergefell has had the same sort of unworkability problems that Roe did. And you haven’t seen the massive ongoing resistance to Obergefell that you saw to Roe. I mean, in Roe – Roe spawned the pro-life movement. It spawned 50 years of deep political division because the people lacked the ability to defend life through the political process.

“Gay marriage – there had been a vibrant political movement to protect marriage, to defend traditional marriage as the union of one man and one woman. That was on the ballot many places in the country. It was on the ballot in California, Proposition 8, where a majority of the citizens in California – bright blue, Left-leaning California – voted against Gay marriage when Gay marriage was on the ballot, when they were given the chance to vote on it.

“That being said, since Obergefell, there is not a massive political movement seeking to unwind it, in the way there was with Roe; That it hasn’t produced anywhere near the same level of division, which may be one of the reasons why the majority opinion in Dobbs didn’t show any interest in even – “ [Post runs out at this point.]