Texas Attorney General Pledges To Defend Anti-Sodomy Law If Supreme Court Reverses Ruling

Texas Attorney General Ken Paxton has declared himself ready, willing and able to recriminalize sodomy in his state if the U.S. Supreme Court overturns a nine-year-old decision that declared the Lone Star State’s prohibition of the act unconstitutional.

What Happened: According to a Houston Chronicle report, Paxton cited Justice Clarence Thomas’ separate concurring opinion from the overturn of Roe v. Wade as the potential stepping stone for revisiting and reversing other once-controversial cases, including the 1965 Griswold v. Connecticut case that legalized the purchase of contraceptives, the 2015 Obergefell v. Hodges case that affirmed the legal right for same-sex marriages and the 2003 Lawrence vs. Texas that voided a 1973 Texas law that made sodomy a criminal act.

Although none of Thomas’ fellow Supreme Court justices seemed to agree with the belief that they “have a duty to 'correct the error' regarding these established in those precedents,” Paxton declared he would move forward if the decisions were overturned.

"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's any constitutional provision dealing with," Paxton said during an interview on the conservative-focused News Nation network. "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 pressed further on Lawrence v. Texas and if he would be willing to argue for the defunct state law before the Supreme Court, Paxton said his job is to "defend state law and I'll continue to do that. That is my job under the Constitution and I'm certainly willing and able to do that."

However, Paxton noted that he would need to consult with the state legislature regarding if a successful defense could be made for restoring the law.

“Ultimately, if it's constitutional, we're going to go defend it,” he said.

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Why It Matters: Lawrence v. Texas was predicated on the 1998 arrest of John Geddes Lawrence Jr. in his Harris County apartment after his former boyfriend falsely called the police to report a man with a weapon was in the residence. The police entered the apartment and found Lawrence engaged in a sex act with another man – both were arrested and briefly jailed, later pleading no contest to a misdemeanor charge and were fined. The men sought to overturn their convictions, fighting up to the U.S. Supreme Court which ruled 6-3 in their favor.

Lawrence v. Texas overturned a previous U.S. Supreme Court ruling in the 1986 case Bowers v. Hardwick, which upheld a Georgia anti-sodomy law under the argument that sexual privacy was not protected by the U.S. Constitution. The Lawrence ruling also invalidated anti-sodomy laws that were in place within 13 other states.

Photo: Ken Paxton, courtesy of his office

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