WASHINGTON -- The conservative lawyer who argued the Supreme Court case that ended California's ban on same-sex marriage condemned Sen. Ted Cruz (R-Texas) Tuesday for calling the decision "judicial activism."
"This is very, very sad and it's very, very unfortunate," Ted Olson told Ari Rabin-Havt, host of the Sirius XM show "The Agenda."
"It is a sad thing when people don't understand that the people cannot vote away the rights of minorities," he added.
Olson was reacting to comments Cruz made at the Texas Republican Convention that appear in a profile of the conservative senator in an upcoming issue of The New Yorker:
"Marriage is under assault," Cruz told the crowd. "It is under assault in a way that is pervasive. We’re seeing marriage under assault in the courts, including, sadly, the Supreme Court of the United States. It struck down the California marriage laws. California had a referendum. They asked the voters of California, ‘Do you want marriage to be a traditional marriage between one man and one woman?’ And the voters of California -- those crazy right-wing kooks -- said, ‘Yes, now that you mention it, we like marriage to be between one man and one woman!’ Went to the U.S. Supreme Court, and the U.S. Supreme Court said, ‘You can’t say that,’ and struck it down. You want to know what judicial activism is? Judicial activism is judges imposing their policy preferences on the words of the Constitution."
Olson and David Boies -- star litigators who faced off during Bush v. Gore -- were the core of a legal team recruited to fight Proposition 8, which banned same-sex marriage in California. Some thought that the high court might use the case as an opportunity to strike down many similar state-level bans across the country. Ultimately, however, the court decided to act more narrowly, letting a lower court's overturning of the ban stand on procedural grounds.
In a different decision the same day, the court struck down a key provision of the Defense of Marriage Act, allowing the federal government to recognize same-sex marriages legalized by the states.
Nationwide, several state-level bans have also been struck down by lower courts, with advocates expecting the issue ultimately to return to the Supreme Court. Any case in the immediate future will take place against the backdrop of the 2016 presidential campaign, where Cruz is considered a possible contender for the Republican nomination.
Republican support for same-sex marriage has grown consistently over the past decade among Republicans -- especially young members of the party -- and a Cruz candidacy would likely rankle some who believe the party should embrace that support.
"Ted Cruz is just plain wrong about that," Olson said. "And it's unfortunate because that is not and should not be the future of the Republican party."