Texas AG Ken Paxton says he’s “willing and able” bring back state ban on gay sex

"They won't stop till they roll back all of our civil rights," Paxton's Democratic challenger said

Published June 30, 2022 2:30PM (EDT)

Texas Attorney General Ken Paxton (Robert Daemmrich Photography Inc/Corbis via Getty Images)
Texas Attorney General Ken Paxton (Robert Daemmrich Photography Inc/Corbis via Getty Images)

This article originally appeared on AlterNet.

Civil libertarians have been warning that if Roe v. Wade was overturned by the U.S. Supreme Court, other civil liberties would be in danger as well. And sure enough, when the High Court announced, on Friday, June 24, that it was overturning RoeJustice Clarence Thomas recommended that the Court "reconsider" some landmark right-to-privacy decisions on contraception and gay rights.

One of the cases that Thomas specially mentioned was Lawrence v. Texas, a 2003 ruling that struck down a sodomy law in the Lone Star State and, by extension, similar laws in other states. Now, far-right Texas Attorney General Ken Paxton is indicating that he is open to the possibility of criminalizing gay sex in Texas once again if Lawrence is ever overturned by the U.S. Supreme Court.

Sydney, Australia's 9News reports that when Paxton, during an interview, was asked if he would be willing to take a challenge to Lawrence v. Texas to the U.S. Supreme Court, he indicated that he would. And Paxton also indicated that he would enforce Texas' old sodomy law if Lawrence were overturned.

Paxton, during that interview, 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."

When the U.S. Supreme Court handed down its 6-3 Lawrence ruling in 2003, Thomas was among the three dissenters; the other two were the late Justice Antonin Scalia and then-Chief Justice William Rehnquist. The majority opinion in Lawrence was written by Justice Anthony Kennedy, a right-wing libertarian and Ronald Reagan appointee who was a strong supporter of right-to-privacy decisions — and Kennedy, in Lawrence, used the right-to-privacy framework that had been a part of not only Roe, but also, other U.S. Supreme Court decisions such as 1965's Griswold v. Connecticut (which established access to contraception as a constitutionally protected right for married couples), 1969's Stanley v. Georgia and 1972's Eisenstadt v. Baird (which expanded Griswold to unmarried couples).

Twelve years after the Lawrence ruling, in 2015, the right-to-privacy framework was employed in Obergefell v. Hodges — which made same-sex marriage a constitutionally protected right. Now that Roe has been overturned, Thomas wants to "reconsider" Obergefell along with Lawrence and Griswold. And Paxton, who is seeking reelection in the 2022 midterms, would obviously like Lawrence to go away.

Paxton's authoritarianism goes way beyond his opposition to abortion rights and gay rights; the Texas attorney general has declared war on democracy itself. Following now-President Joe Biden's victory over then-President Donald Trump in the 2020 presidential election, Paxton aggressively promoted the Big Lie and filed a lawsuit seeking to bar four states that Biden won from casting their electoral votes: Pennsylvania, Georgia, Wisconsin and Michigan. Paxton's Texas v. Pennsylvania lawsuit was rejected by the U.S. Supreme Court.

Rochelle Garza, the Democratic nominee running against Paxton in Texas' state attorney general race, is warning that abortion isn't the only civil liberty Paxton is attacking. Garza recently tweeted, "Roe was just the first — they won't stop till they roll back all of our civil rights. We MUST kick Ken Paxton out of office this Nov."

But Garza is fighting an uphill battle. Although Democrats have been making inroads in Texas — which, at this point, is light red rather than deep red like Mississippi, Idaho, West Virginia or Wyoming — they still struggle in statewide races there. Biden lost Texas to Trump by about 6% in 2020.

Law professor Laurence Tribe has astutely commented that Lawrence v. Texas "may well be remembered as the Brown v. Board of Education of gay and lesbian America." But if Paxton has his way, that's all the protections of Lawrence will be — a memory.

By Alex Henderson

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Ken Paxton Lgbtq Partner Politics Supreme Court