WASHINGTON — Like many conservatives, Sen. Ted Cruz has gone out of his way since the Supreme Court struck down Roe vs. Wade to ease fears that, with abortion rights erased, gay marriage is the next target.
Cruz still denounces the 2015 ruling that extended marriage equality to same-sex couples as “clearly wrong.” But he’s softened his stance, conceding recently that on the definition of marriage, reasonable minds can differ — a remarkable shift.
Just seven years ago, Cruz proposed a constitutional amendment to define marriage as only one thing: the union of a man and a woman.
“I believe marriage is the union of one man and one woman. I also recognize that reasonable people can disagree on that and I believe that there is room for a diversity of views,” he said at the Senate recently when prompted to explain his personal views.
Concern about the future of gay marriage has grown since the court struck down Roe in its 6-3 ruling in Dobbs vs. Jackson Women’s Health. Justice Clarence Thomas, in his concurrent opinion, argued the court should apply the same reasoning to overturn its 2015 ruling that legalized same-sex marriage nationwide.
To avert that possibility, the House passed the Respect for Marriage Act last month. The bill would repeal the 1996 Defense of Marriage Act, which defined marriage as a heterosexual union and let each state decide whether to recognize out-of-state marriages.
There are now more than a half million same-sex marriages nationwide. Cruz is sympathetic to the idea that it’s no longer tenable for the high court to reverse course. But he opposes the bill to codify same-sex marriage, which the Senate is expected to vote on later this month.
The House vote was 267-157, with support from every Democrat and 47 Republicans, including one Texan: Rep. Tony Gonzales of San Antonio.
“This is a pure political messaging bill. The Supreme Court said repeatedly and unequivocally that it was not going to revisit Obergefell,” Cruz told reporters. “This is the Democrats playing politics and, frankly, trying to change the subject from Biden’s failed record of inflation, crime and chaos of the southern border.”
That’s when he was asked his personal views and averred, perhaps for the first time in public, that “reasonable people can disagree” on whether marriage should be reserved only for heterosexuals.
It’s an astonishingly far cry from his rhetoric during the 2016 presidential campaign, launched in March 2015 at the world’s largest Christian school, Liberty University, founded by evangelist Jerry Falwell, with a vow to “uphold the sacrament of marriage.”
A month later, Cruz introduced a constitutional amendment to strip from the states authority to define marriage as anything other than a heterosexual union. The resolution drew no co-sponsors and died without a hearing or vote.
But it laid a marker and helped Cruz position himself as the social conservatives’ choice in the primaries.
Cruz now says the definition of marriage should be left to the states.
“There was a full-fledged democratic debate until the Supreme Court said no, sorry, silly people, there’s only one right answer,” he said recently on his podcast.
Anthony Michael Kreis, a constitutional law professor at Georgia State University who studies LGBT rights, sees no change of heart in Cruz, given his opposition to the Respect for Marriage bill.
“If someone truly wanted to evolve on the issue, there’s a vote that they could do that on,” he said. “If push comes to shove and there’s an opportunity to overturn Obergefell, will Ted Cruz line up to do it? Absolutely.”
‘Darkest 24 hours’
Cruz was in Iowa, stumping for the White House, when the Supreme Court handed down Obergefell vs. Hodges in June 2015.
Texas was one of 14 states where Obergefell made bans on same sex-marriage unenforceable.
Cruz accused the high court of imposing “mandatory gay marriage.” He called the 5-4 ruling “the very definition of lawlessness” and proposed ending life tenure for justices, creating retention elections every eight years so voters could remove them.
“Today is some of the darkest 24 hours in our nation’s history,” he told Fox News host Sean Hannity.
Same-sex marriage was already legal in 37 states and the District of Columbia through court rulings, legislation or referendums.
For Cruz’s presidential hopes, the timing could not have been much better. His chances hinged on support from evangelical Christians, and he turned the judicial setback into lemonade.
Accusations that Democrats and unelected, unaccountable judges were trying to “tear down marriage” became a staple in his stump speech.
Five weeks after Obergefell, Cruz named Betty and Richard Odgaard as his “Religious Liberty Ambassadors” and part of his Iowa leadership team.
The Odgaards had refused to let a gay couple marry at their bistro near Des Moines. Ordered to pay the couple $5,000 and to stop discriminating, the Odgaards closed their business and began erecting billboards declaring that marriage comes in just the one traditional flavor.
The signs read “Marriage=1+1″ with a male and female figure next to each number and the tagline, “Please…I need your help with this! –God.”
Cruz’s vehemence offered a stark alternative to the front-runner, and he began poking at Donald Trump’s “New York values.”
“There are many, many wonderful, wonderful working men and women in the state of New York, but everyone understands that the values in New York City are socially liberal or pro-abortion or pro-gay marriage, (and) focus around money and the media,” the Texan said at a debate in South Carolina.
As the Iowa caucuses approached, Cruz scored the endorsement of the National Organization for Marriage, which led efforts across the country for years to block state laws recognizing marriage rights for same-sex couples.
Its president, Brian Brown, said the group wanted to endorse someone who’d made defense of traditional marriage a “pillar” of his political career. He called Cruz “someone we can absolutely count on to fight to restore marriage to our nation’s laws and defend the religious liberty of the tens of millions of Americans who believe that marriage is the union of one man and one woman.”
Two days before the caucuses, at a muddy fairgrounds in Iowa City, Duck Dynasty patriarch Phil Robertson was stumping at Cruz’s side.
“Duck commander” Robertson called the Obergefell ruling sinful. He warned of an erosion of morality in America. He called same-sex-marriage “depravity” and “perversion.”
Cruz did not contradict him.
In light of all that, Dale Carpenter, a constitutional law professor at Southern Methodist University who studies LGBT rights, called Cruz’s current stance surprising.
“For the first time, I did hear him acknowledge that there are a lot of people who are now married in same-sex marriages” and that it’s too late to undo those unions, he said. “Since Obergefell came down, the sky has not fallen. … He may be speaking to people who support same-sex marriage and the ones who can acknowledge that at least there’s some plausible argument there. And that’s got to be the vast majority of Americans, including Republicans.”
Rising public support
Cruz’s evolution roughly tracks public opinion.
A Gallup poll in late May found a record 71% of Americans support legal same-sex marriage, up from 60% when Cruz launched his bid for president in spring 2015. Support was just 27% in 1996 when Gallup began asking the question.
Support crosses party lines.
“I don’t know that there has been a public policy issue on which views have changed more dramatically than the issue of gay marriage,” Cruz said on his podcast. “It’s really quite a remarkable journey.”
Marco Roberts, interim chair of the Texas Conservative Liberty Forum and a former state chair of Log Cabin Republicans, which represents LGBT conservatives, agreed.
“If you ask Republicans under 40, overwhelmingly by large majorities, same-sex marriage is supported,” Roberts said, adding that Cruz is far less strident on the issue than some other conservatives. “He’s trying to take a more nuanced approach.”
The Dobbs ruling put fresh attention on gay marriage because Obergefell and Roe are in the same family of cases involving privacy rights.
Justice Samuel Alito, in the majority opinion, argued that marriage is a stronger precedent because couples rely on it for property rights, taxes, estate planning and health care.
But Justice Thomas argued that the court now “should reconsider” Obergefell, along with Griswold vs. Connecticut from 1965, which protected access to contraception, and Lawrence vs. Texas from 2003, which overturned a sodomy ban that effectively criminalized homosexuality.
Cruz, who clerked for former Chief Justice William Rehnquist, noted that none of the other eight justices agreed with Thomas.
“I don’t think this court has any appetite for overturning any of these decisions,” he said on his podcast. “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.”
“That would be a factor that would counsel restraint,” he said.
Texas Attorney General Ken Paxton has hinted that in light of Dobbs, Texas could again enforce that sodomy ban.
Cruz — alone among statewide officials — spoke out against that. He called for repeal of the ban and told The Dallas Morning News that “consenting adults should be able to do what they wish in their private sexual activity, and government has no business in their bedrooms.”
It would be a mistake to say the senator has gone “woke” on LGBT issues, though.
On Friday at the Conservative Political Action Conference in Dallas, Cruz quipped that transsexual swimmer Lia Thomas, an NCAA champion from Austin, “looks like Michael Phelps,” the record-smashing male Olympian.
Cruz also mocked the college campus norm of declaring one’s pronouns, telling CPAC activists: “My name is Ted Cruz, and my pronouns are ‘kiss my ass.’”
“More often than not, Cruz’s words have caused harm,” said Ricardo Martinez, CEO of Equality Texas. But he welcomed the recognition that ending legal protection for same-sex marriage would mean chaos for hundreds of thousands of families.
“Cruz is right that Americans, and especially Texans, do not respond well to taking away liberties,” he said.