The Supreme Court decision overturning Roe v. Wade has many hardline conservatives itching to scrap other decisions they have long reviled. Sen. Ted Cruz, R-Texas, spoke for many in his party when he argued that the court was "clearly wrong" in 2015 when it struck down laws against same-sex marriage.
On Tuesday, House Democrats, fearful that the court may agree, put through a measure to preserve marriage equality nationwide — and 47 Republicans voted yes. That doesn't mean the Senate will go along, but Cruz is clearly on the losing side of the political debate. More surprising, perhaps, is that he may be on the losing side of the constitutional debate — even with this court.
The decision in Obergefell v. Hodges was controversial at the time but soon became a nonissue. A recent Gallup survey found that 71% of Americans think same-sex couples should be allowed to marry. Democrats would like nothing better than for Republicans to run on a platform of banning same-sex marriage.
In holding forth, Cruz cruelly exposed the weakness of his case. "Obergefell, like Roe v. Wade, ignored two centuries of our nation's history," he said. "Marriage was always an issue that was left to the states." Those who favored same-sex marriage should have had to succeed "in convincing your fellow citizens" to "change the laws."
But this argument could also be used against the 1967 Supreme Court decision in Loving v. Virginia legalizing interracial marriage — which was illegal in 16 states. History and states' rights argued for letting those laws remain in force.
Critics of Roe v. Wade ridiculed its emphasis on the right to privacy, which the Constitution does not explicitly protect. But the opinion in Loving never mentioned privacy — and the opinion in Obergefell mentioned it just once, in passing.
It relied instead on the 14th Amendment, which says no state may "deny to any person within its jurisdiction the equal protection of the laws." Lawyers for Virginia argued that the ban on miscegenation didn't discriminate against Black people because whites were also forbidden to marry someone of a different race. Those who favored laws against same-sex marriage argued that gays and lesbians had the same right as heterosexuals — to marry someone of a different gender.
But these laws deprived individuals of the freedom to choose their spouses — and without a compelling reason. States sanction marriage because it serves such purposes as fostering stable families and protecting children. It serves those purposes just as well for interracial and same-sex couples as it does for others.
Cruz might argue that the 14th Amendment was intended to prevent discrimination on the basis of race, not gender. But the Supreme Court has long ruled that this language generally forbids treating men and women differently.
A ban on same-sex marriage is a form of gender bias. The court has already recognized this logic. In 2020, it ruled that firing an employee for being gay violated the federal law forbidding sex discrimination.
"There is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant's sex," said the court. "By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women."
You might figure that the court's six conservatives would be willing to reverse the decision on marriage equality. But one of them, Neil Gorsuch, wrote the opinion on discrimination against gay and transgender people. And another, John Roberts, joined the majority opinion.
Other conservative justices might think twice about letting states upend all the same-sex marriages that have come into being. In his concurrence in the abortion case, Brett Kavanaugh stressed that overturning Roe "does not threaten or cast doubt on" the same-sex marriage decision, among others.
Revoking the right to abortion doesn't undo the decisions of women who had already terminated pregnancies. But revoking the right to same-sex marriage could disrupt families on a mass scale — a reality that even Cruz admitted makes it "unlikely" the court will do it.
There is also the simple fact that reversing Obergefell would provide no tangible benefit to anyone. In overturning Roe, the court could claim to protect unborn children. But overturning Obergefell would clearly harm the born children of same-sex couples, as well as their parents.
Cruz is entitled to wish, and House members are right to fear, that the court has it in for same-sex marriage. But even conservative justices sometimes realize the wisdom of leaving well enough alone.
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