Cruz spoke on his podcast about the differences between that case and the Supreme Court’s recent decision that overturned Roe v. Wade, which had previously protected abortion rights nationwide. He criticized the court for preventing individual states from deciding for themselves whether same-sex marriage should be allowed.
“Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history. He said that marriage was always an issue left to the states,” he said. “In Obergefell, the court said no, we know better than you guys do, and now every state must sanction and permit gay marriage. I think that decision was clearly wrong when it was decided. It was the court overreaching.”
Cruz added that he personally doesn’t expect the court to reverse its decision, however, reasoning that “it would be more than a little chaotic” based on the number of same-sex marriages that have already legally taken place.
Cruz has previously advocated for allowing individual states to outlaw same-sex marriage. For many, his desire appears closer to reality due to last month’s Supreme Court ruling on abortion rights in Dobbs v. Jackson Women’s Health Organization, which ignited concerns that the court might overturn other decisions.
Justice Clarence Thomas amplified that concern, stating in a solo concurring opinion that any decision made by the Supreme Court that was stated to be supported by the due process clause of the 14th Amendment, such as Roe v. Wade was, should be reconsidered.
“Any substantive due process decision is ‘demonstrably erroneous,’” he said last month, adding that “we have a duty to ‘correct the error’ established in those precedents.”
Other rulings citing the due process clause include Griswold v. Connecticut, which established the right for married couples to use contraception; Lawrence v. Texas, which prohibits states from banning sexual relations between people of the same sex; and Loving v. Virginia, which protects interracial marriage.
In his opinion, Thomas mentioned the Obergefell, Griswold, and Lawrence cases but did not mention the Loving case, which, if overturned, could threaten his interracial marriage.