Attorney General Ken Paxton says he will defend Texas sodomy law if Supreme Court revisits Lawrence vs. Texas

'My job is to defend state law and I'll continue to do that,' Paxton said during a Friday appearance on News Nation's "On Balance with Leland Vittert."

WASHINGTON, DC - ARPIL 26: Texas Attorney General Ken Paxton speaks to reporters after the Supreme Court oral arguments in the Biden v. Texas case at the Supreme Court on Capitol Hill on Tuesday, April 26, 2022 in Washington, DC. (Photo by Sarah Silbiger for The Washington Post via Getty Images)

The Washington Post/The Washington Post via Getty Im

Texas Attorney General Ken Paxton last week seemingly expressed support for the Supreme Court potentially overturning past rulings on cases involving the LGBTQ community following the downfall of Roe v. Wade on Friday.

In a separate concurring opinion Friday, Supreme Court Justice Clarence Thomas questioned a number of the high court's past rulings, including Obergefell v. Hodges, which established the right of same-sex couples to marry, and Lawrence vs. Texas—a 2003 decision in which the court ruled against the state of Texas regarding a 1973 law criminalizing the act of sodomy. 

Thomas also mentioned Griswold v. Connecticut, which established the right of married couples to use contraception without government interference. "In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is 'demonstrably erroneous,'" Thomas wrote. "We have a duty to 'correct the error' regarding these established in those precedents."  

During a Friday appearance on News Nation's "On Balance with Leland Vittert," Paxton said he would support the Supreme Court revisiting the cases mentioned by Thomas and defend Texas' long-unenforced law against sodomy. 

"I'm sure you read Justice Thomas's concurrence where he said there were a number of other of these issues, 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."

Vittert pressed on, asking, "For the sake of time here, you wouldn't rule out that if the state legislature passed the 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?" 

Paxton responded: "Yeah, look 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." 

Asked if he would support the Texas Legislature testing the law, Paxton demurred. "I'd have to take a look at it," the attorney general said. "This is all new territory for us so I'd have to 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's statements drew a swift rebuke from his Democratic opponent Rochelle Garza, who took to Twitter to call out the attorney general for his remarks during the interview. "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."

Conservative leaders from other states have since expressed support for Justice Thomas's opinion, including Utah Senate President Stuart Adams, who said he would support the Supreme Court reconsidering same-sex marriage. Utah’s constitutional ban on same-sex unions still exists and could be reinstated if the high court were to overturn its earlier decision.

Paxton's office did not immediately respond to a request for comment by the time of this writing. 

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