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Texas AG says he’d defend sodomy law if Supreme Court revisits ruling

Texas Attorney General Ken Paxton (R) speaks to antiabortion supporters outside the U.S. Supreme Court on Nov. 1, 2021. (Evelyn Hockstein/Reuters)

Shortly after the Supreme Court struck down Roe v. Wade, Texas Attorney General Ken Paxton (R) appeared to express support for Justice Clarence Thomas’s concurring opinion that the high court could review other precedents that may be deemed “demonstrably erroneous,” including those affecting the LGBTQ community.

One of the cases mentioned by Thomas was Lawrence v. Texas, which prevents states from banning intimate same-sex relationships. The landmark 2003 ruling struck down a 1973 Texas law that criminalized the act of sodomy. But as Roe was overturned, Paxton said he would defend the state’s defunct sodomy law if the Supreme Court were to follow Thomas’s remarks and eventually revisits Lawrence.

“I mean, there’s all kinds of issues here, but certainly the Supreme Court has stepped into issues that I don’t think there’s any constitutional provision dealing with,” Paxton said in a Friday interview with NewsNation anchor Leland Vittert. “They were legislative issues, and this is one of those issues, and there may be more. So it would depend on the issue and dependent on what state law had said at the time.”

When asked whether the Texas legislature would pass a similar sodomy law and if Paxton would defend it and bring it to the Supreme Court, the Republican attorney general, who is running for reelection in November, suggested he would be comfortable supporting a law outlawing intimate same-sex relationships.

“Yeah, look, my job is to defend state law, and I’ll continue to do that,” Paxton said to Vittert. “That is my job under the Constitution, and I’m certainly willing and able to do that.”

A spokesman for Paxton did not immediately respond to a request for comment from The Washington Post.

The attorney general’s support of a sodomy law comes as Texas is among the 13 states with “trigger bans,” designed to take effect once Roe was struck down, that will prohibit abortion within 30 days. Before last week’s Supreme Court decision, Texas had already restricted abortions to the first six weeks of pregnancy, when many people do not yet realize they are pregnant. Paxton had also issued an advisory that prosecutors could pursue criminal cases under an unenforced 1925 state law before the trigger ban began.

Abortion is now banned in these states. Others will follow.

On Tuesday, Harris County Judge Christine Weems (D) granted a temporary restraining order to allow clinics to offer abortions for at least two weeks without criminal prosecution. Weems ruled that a pre-Roe ban enforced by Paxton and prosecutors would “inevitably and irreparably chill the provision of abortions in the vital last weeks in which safer abortion care remains available and lawful in Texas.”

A Texas judge granted a temporary restraining order June 28 that allows some clinics to resume abortions up to six weeks of pregnancy. (Video: Reuters)

Following Friday’s culture-shaking opinion in Dobbs v. Jackson Women’s Health Organization, health advocates, legal experts and Democrats are wondering whether the Supreme Court’s conservative majority could eye to overturn other rights in the years to come.

Thomas took aim at Lawrence in an opinion concurring with his conservative colleagues on the Supreme Court to overturn Roe. The justice also mentioned Griswold v. Connecticut, the 1965 ruling allowing married couples the right to buy and use contraception without government restriction, and Obergefell v. Hodges, the 2015 case that legalized marriage equality.

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote on Page 119 of the opinion in Dobbs.Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”

Thomas added, “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

Biden, other critics fear Thomas’s ‘extreme’ position on contraception

The five other conservative justices who joined in the decision, however, explicitly tried to reassure in their opinion that those other rights will not be targeted. The opinion by the dissenting justice “suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. … But we have stated unequivocally that [n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” they wrote.

Thomas’s opinion was denounced by President Biden as part of what he described as “an extreme and dangerous path the court is now taking us on.”

On June 24 President Biden made a forceful defense for abortion protections in the wake of the Supreme Court 6-3 decision overturning Roe v. Wade. (Video: The Washington Post)

As recently as 1960, every state in the country had an anti-sodomy law, according to the New York Times. In Lawrence, the Supreme Court struck down a Texas law banning gay sex. That opinion overturned a controversial 1986 ruling that had upheld an anti-sodomy law in Georgia on a 5-4 vote. That ruling found that the Constitution didn’t protect gay sex, even in the privacy of peoples’ homes.

Justice Anthony M. Kennedy wrote for the majority in the 6-to-3 ruling that gay people are “entitled to respect for their private lives.”

“The State cannot demean their existence or control their destiny by making their private sexual conduct a crime,” Kennedy wrote. “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

The most important decisions the Supreme Court has overturned

In his dissent, Justice Antonin Scalia wrote the majority opinion in Lawrence was “the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Republicans have cheered the Supreme Court’s decision, with former vice president Mike Pence calling for a national abortion ban. While House Minority Leader Kevin McCarthy (R-Calif.) declined to answer whether he would support the Supreme Court reviewing the rights to some of the cases mentioned by Thomas, other Republicans have been more vocal about their position. Utah Senate President Stuart Adams (R) said he would support the state’s constitutional ban on same-sex unions if the Supreme Court reconsidered marriage equality, according to the Salt Lake Tribune.

LGBTQ community braces for rollback of rights after abortion ruling

Paxton has also lauded the abortion decision, declaring in a news release that June 24 is now an annual holiday for the Texas attorney general’s office.

His comments regarding same-sex relationships in Texas were met with blowback from critics and liberals, including Rochelle Garza, the Democratic nominee for state attorney general who is running against Paxton in November.

“Roe was just the first — they won’t stop till they roll back all of our civil rights,” she tweeted Tuesday.

When asked again Friday if he would support the Texas legislature potentially testing the sodomy law, Paxton was reluctant but maintained he would defend the law if the Supreme Court revisited Lawrence.

“I’d have to take a look at it,” he said to NewsNation. “This is all new territory for us, so I’d have to [see] how the legislature was laid out and whether we thought we could defend it. Ultimately, if it’s constitutional, we’re going to go defend it.”

Frederic J. Frommer contributed to this report.

Roe v. Wade and abortion access in America

Roe v. Wade overturned: The Supreme Court has struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.

State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.

How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.