Texas AG willing to spearhead Supreme Court case to criminalize sodomy again

Texas Attorney General Ken Paxton (R)
Texas Attorney General Ken Paxton (R) Photo: Screenshot

Texas Attorney General Ken Paxton (R) said that he would be willing to defend a state law that would challenge Lawrence v. Texas, the Supreme Court decision that said that states couldn’t ban people from having gay sex. In the early 2000’s, Paxton was a vocal supporter of putting gay people in jail for what was then the crime of having sex, something he believed was necessary for “public health” and to “discourage sexual activity outside of marriage.”

“Would you, as attorney general, be comfortable defending a law that once again outlawed sodomy?” NewsNation host Leland Vittert asked Paxton  this past weekend.

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The host brought up the possibility of overturning the 2003 Supreme Court decision – and allowing states to throw gay people in jail for private, consensual sex between adults – because of the Court’s decision this past Friday to overturn Roe v. Wade, which throws other decisions based on the right to privacy and substantive due process into question.

In his concurring opinion, Supreme Court Justice Clarence Thomas even suggested that the Court should “correct the error” made in decisions like Lawrence and allow the states more power to control people’s lives.

And Paxton said he was willing to go along with that plan.

“Yeah, I mean, there’s all kinds of issues here, but certainly the Supreme Court has stepped into issues that I don’t think there was any constitutional provision dealing with,” Paxton responded. “They were legislative issues, and this is one of those issues and there may be more.”

Paxton started to ramble, so Vittert asked: “Just for the sake of time here, you wouldn’t rule out that if the state legislature passed the exact same law that Lawrence overturned on sodomy, you wouldn’t have any problem then defending that and taking that case back to the Supreme Court?”

“Yeah look, my job is to defend the state law and I’ll continue to do that,” Paxton responded

“Would you support the legislature in bringing that test?” the Vittert asked.

“I don’t know, I’d have to take a look at it,” Paxton said.

Paxton, back when he was a Texas state representative, was one of several lawmakers who signed an amicus brief asking the Supreme Court to decide in favor of Texas’s sodomy ban in Lawrence v. Texas.

In the brief, Paxton and his colleagues argued that sodomy bans were required for “protecting public health.”

“One of the rational bases for enacting [the ban] was to protect public health from the very real danger of same-sex sodomy,” the brief states. “Legislators are especially concerned for the health safety and well-being of those who may seek to engage in same-sex sodomy.”

The brief brings up statistics that show that HIV hit gay and bi men particularly hard but does not show how sodomy laws – which make prevention and treatment measures for HIV more difficult – are related to this, unless one were to assume that people actually decided not to be gay because of this law.

The brief also argued that states have a right to “encourage marriage and discourage sexual activity outside of marriage” and that the law is “one part of a larger network of laws designed to further the legitimate State interest of promoting traditional marriage of one man and one woman.”

Paxton’s statement comes after years of attacking LGBTQ rights. Earlier this year he issued a non-binding legal opinion that parents who allow their transgender children to access gender-affirming care are violating their children’s constitutional rights and therefore “legally constitute child abuse.”

Texas Gov. Greg Abbott (R) then issued an order calling for the state to investigate parents of transgender children as child abusers. His order cited Paxton’s opinion and has already led to a lawsuit against the state.

In 2019, Paxton opened an investigation into possible “religious discrimination” against Chick-fil-A as the fast food chain’s donations to anti-LGBTQ causes got media attention again.

In 2015, Paxton issued an opinion advising local officials that they could refuse to issue marriage licenses to same-sex couples on religious grounds, a stance that led to an ethics complaint against him signed by over 200 lawyers who argued that his opinion could encourage those officials to violate the constitutional rights of LGBTQ people.

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