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Texas AG would go to court to defend state's sodomy law

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Texas Attorney General Ken Paxton — Photo by Kevin Lamarque / Reuters
Texas Attorney General Ken Paxton — Photo by Kevin Lamarque / Reuters

Roe v. Wade is down. What's next?

Texas Attorney General Ken Paxton gave one possible answer on June 28: Lawrence v. Texas, the 2003 case in which the US Supreme Court established a right to privacy during consensual sex.

At issue was a Texas law banning "sodomy" — defined as sex between people of the same sex. In a 6-3 decision, the court ruled that the law violated the substantive due process rights of privacy and personal autonomy.

Clarence Thomas, one of the dissenters in Lawrence, wrote in his concurring opinion in this month's abortion case that the high court should revisit all prior decisions based on substantive due process claims, including Lawrence and Obergefell v. Hodges, which legalized same-sex marriage.

Within a week, Paxton — a notorious publicity-seeking right-winger — jumped into the spotlight.

"My job is to defend state law, and I'll continue to do that," Paxton said during a Friday appearance on News Nation's show On Balance with Leland Vittert. "That is my job under the Constitution, and I'm certainly willing and able to do that."

Texas, like many states with sodomy laws on the books at the time of the Lawrence decision, did not actually repeal the law even though the Supreme Court's ruling made it unenforceable.

Currently Alabama, Florida, Idaho, Kansas, Louisiana, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, and Utah still have such laws — and they could become enforceable again if the Supreme Court reverses the Lawrence decision.

"I'm sure you read Justice Thomas's concurrence, where he said there were a number of other of these issues — [the prior Supreme Court cases] Griswold, Lawrence, and Obergefell — he felt needs to be looked at again," Vittert told Paxton.

"Obviously the Lawrence case came from Texas... Would you as attorney general be comfortable defending a law that once again outlawed sodomy? That questioned Lawrence again or Griswold or Gay marriage? That came from the state legislature to put to the test what Justice Thomas said?"

"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 responded. "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."

Asked if he would support the Texas legislature filing suit to test the high court's view of the law, Paxton was cautious.

"I'd have to take a look at it," Paxton said. "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."

Paxton is up for reelection this year, and his statement drew a swift rebuke from his Democratic opponent Rochelle Garza, who took to Twitter to call out the attorney general for his remarks.

"Roe was just the first — they won't stop till they roll back all of our civil rights," Garza wrote. "We MUST kick Ken Paxton out of office this Nov. When I'm Attorney General, Texans will have a Civil Rights Division to protect ALL of our rights. Y'all means all. Period."