Texas attorney general says he would defend sodomy ban 'if it's constitutional'

"The Supreme Court has stepped into issues that I don't think there's any constitutional provisions dealing with," Paxton said

Updated: June 29, 2022 - 11:33pm

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Texas Republican Attorney General Ken Paxton said he would defend a law banning same-sex intercourse "if it is constitutional," after Justice Clarence Thomas criticized previous court decisions in his opinion on Dobbs v. Jackson Women's Health.

Thomas has faced attacks for his opinion in the case overruling the landmark abortion case Roe v. Wade. He focused heavily on his opposition to using the 14th Amendment's Due Process clause to justify a right to privacy.

Thomas wrote that "in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell," which granted married couples the right to use contraception, struck down Texas's sodomy ban, and gave same sex couples the right to marry, respectively.

"Because any substantive due process decision is 'demonstrably erroneous'... we have a duty to 'correct the error' established in those precedents," Thomas explained. "After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated."

Reporter Leland Vittert of NewsNation on Friday asked Paxton about Thomas's opinion.

"Obviously the Lawrence case came from Texas... would you as an 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?" Vittert asked. 

Paxton replied, "...The Supreme Court has stepped into issues that I don't think there's any constitutional provisions dealing with. They were legislative, and this is one of those issues and there may be more." 

Vittert pressed again about a hypothetical sodomy law. 

"Look, my job is to defend the 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," Paxton said.

Vittert asked the attorney general again what he would do. 

"You know what, I don't know. I'd have to take a look at it. Like I said, this is all new territory for us. I'd have to see how the legislation was laid out and whether we thought we could defend it," Paxton said, adding, "If it's constitutional, we're going to go defend it."