Texas AG Says He’s ‘Willing and Able’ to Defend a Ban on ‘Sodomy’

In 2003, Lawrence v. Texas made it illegal for states to ban gay sexual activity. But the Supreme Court has opened the door to reinstating those bans.
Ken Paxton, Texas attorney general, speaks during a news conference outside the Supreme Court in Washington, D.C., U.S., on Monday, Sept. 9, 2019 (Andrew Harrer/Bloomberg via Getty Images)
Ken Paxton, Texas attorney general, speaks during a news conference outside the Supreme Court in Washington, D.C., U.S., on Monday, Sept. 9, 2019 (Andrew Harrer/Bloomberg via Getty Images)

Texas Attorney General Ken Paxton said he’s willing to defend Texas’ law banning “sodomy” which was overturned by the landmark Lawrence v. Texas case if the Supreme Court rules that the states should be able to regulate issues such as sex, birth control, and same-sex marriage. 

After the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health overturned the landmark Roe decision, ending the national right to an abortion, Paxton ordered his office closed for a holiday “as a memorial to the millions of lives lost due to abortion.” Paxton is also a virulently anti-gay politician who provided the legal underpinning for Gov. Greg Abbott’s executive order to investigate parents of transgender children for child abuse, and taken the city of Houston to court over benefits for same-sex couples.


In an appearance on NewsNation Saturday, Paxton was asked if he would “feel comfortable defending a law that once again outlawed sodomy,” as well as gay marriage and birth control.

“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 issues dealing with, they were legislative issues,” Paxton told NewsNation. “[Abortion] was one of those issues, and there may be more.”

Asked specifically about Lawrence v. Texas, a 2003 Supreme Court ruling that overturned a state anti-sodomy law and made all such laws invalid nationwide, Paxton said: “My 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.”

This isn’t exactly a hypothetical. In a solo concurrence to the Dobbs decision, Associate Justice Clarence Thomas—perhaps the most far-right member of the Court—said the Court should revisit other decisions that, like Roe, had their legal basis in the 14th Amendment and substantive due process.

“In future we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. Griswold v. Connecticut is a 1965 case that enshrined the right of married couples to buy and use contraception.


“Because any substantive due process decision is ‘demonstrably erroneous.’ we have a duty to ‘correct the error’ established in those precedents,” Thomas added, quoting himself. 

Texas, which previously enacted the nation’s most restrictive abortion law by banning abortion after six weeks, had banned abortion before Roe, and never took that law off the books. The Dobbs decision allowed that law to once again go into effect–but on Tuesday, a judge in Harris County issued a temporary restraining order barring the state from enforcing it. 

“Today a Harris County judge froze pre-Roe laws criminalizing abortion in TX. But w/ SCOTUS’s Dobbs decision, these laws are 100% in effect & constitutional,” Paxton said in a tweet Tuesday. “The judge’s decision is wrong. I’m immediately appealing. I’ll ensure we have all the legal tools to keep TX pro-life!” 

Rochelle Garza, the Democratic nominee running against Paxton in the fall and a former ACLU staff attorney, responded to Paxton’s comments by tweeting that “they won’t stop till they roll back all of our civil rights.”

“We MUST kick Ken Paxton out of office this Nov.,” Garza wrote. “When I’m Attorney General, Texans will have a Civil Rights Division to protect ALL of our rights.”

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