Last week, several GOP senators tried to reassure the public that the Supreme Court’s ruling overturning Roe v. Wade wouldn’t affect other civil rights. Issues such as marriage equality and contraception access, the Republicans said, are not seriously at risk.
And yet, for all the assumptions about the stability of the status quo, some prominent GOP voices continue to make highly provocative comments, each of which serves as a reminder that for many Republicans, these debates are not yet over. NBC News reported:
Sen. Ted Cruz, R-Texas, said Saturday that the Supreme Court was “clearly wrong” and “overreaching” when it legalized same-sex marriage nationwide in the landmark Obergefell v. Hodges ruling in 2015.... Cruz, a longtime opponent of same-sex marriage, said it’s unlikely the court would reverse Obergefell, but he argued that both abortion and same-sex marriage should be left to the states.
“Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history,” Cruz said on his podcast. “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.”
It’s worth emphasizing that the Texas senator did not explicitly say that he wants to legally prohibit same-sex couples from getting married. Rather, Cruz seemed to suggest he that preferred a system in which states had the opportunity to prohibit same-sex couples from getting married.
For opponents of discrimination, the distinction between the two positions is hardly reassuring.
What’s more, Cruz isn’t alone. It was, after all, just last month when Justice Clarence Thomas wrote a concurring opinion in which he said the marriage equality ruling, among others, was “demonstrably erroneous” and should be “reconsidered.”
A week earlier, the Texas Republican Party approved a new platform that declared, among other things, “We affirm God’s biblical design for marriage and sexual behavior between one biological man and one biological woman.... We oppose homosexual marriage, regardless of state of origin.”
The Maine Republican Party also recently adopted a platform that opposes, among other things, same-sex marriage.
Circling back to our earlier coverage, it was a few weeks earlier, as the Senate moved toward confirming Ketanji Brown Jackson’s Supreme Court nomination, when Republican Sen. John Cornyn of Texas invested a surprising amount of time criticizing the Obergefell ruling.
Last year, Kevin Roberts, the new president of the Heritage Foundation, went to so far as to argue that if you support marriage equality, “it means you’re not a movement conservative.”
The year before that, Supreme Court Justices Samuel Alito and Thomas complained in a dissent about the “victims” of the court’s marriage equality ruling, and around the same time, Alito delivered an unusually political speech to the Federalist Society in which he whined about social pressure surrounding anti-LGBTQ+ sentiments.
“You can’t say that marriage is a union between one man and one woman” anymore, the conservative justice whined, as if he were a candidate seeking social conservatives’ votes. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
It would be an overstatement to suggest that marriage equality is in imminent danger. That said, especially in the wake of Roe‘s demise, it seems irresponsible to simply shrug with indifference as Republicans and Republican-appointed justices make clear that they see the issue as unsettled and the debate as ongoing.
With this in mind, there are a few angles to keep an eye on. First, there’s every reason to consider this an active campaign issue in 2022 and 2024. Indeed, it’s hardly unreasonable to expect other GOP incumbents and candidates to answer a straightforward question: Is Cruz right about the Supreme Court’s marriage equality ruling?
Second, don’t be surprised if congressional Democrats move forward with legislation — in this current Congress — to codify Obergefell in federal law.
And third, I’m reminded anew of something Rachel said on the show last month, after the Republican-appointed justices overturned Roe: “If you are in a same sex marriage, this may be the time to start thinking about duplicative legal arrangements to protect you and your spouse, your family, your kids, your property, your finances. If this court moves quickly on Justice Thomas’ list of what rights they are going to abolish next, being in a same-sex marriage now means there is a target on you from this court.”
And as Cruz just reminded us, the court isn’t the only source of potential trouble.