If Texas passes a law banning same-sex intimacy, Attorney General Ken Paxton would be “willing and able” to defend it in court, he told a talk show host over the weekend, and he implied he’d challenge other hard-won rights..
Paxton’s comment comes after U.S. Supreme Court Justice Clarence Thomas, in a concurring opinion when the court overturned Roe v. Wade, said the justices should revisit Lawrence v. Texas, the ruling that invalidated state antisodomy laws across the nation; Obergefell v. Hodges, which established nationwide marriage equality; and Griswold v. Connecticut, which struck down state restrictions on contraception. It would take a case coming to the high court for this to happen, but Paxton, a far-right Republican, indicated he would get one started.
“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?” Leland Vittert, an anchor on the NewsNation cable network, asked Paxton.
“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 provision dealing with,” Paxton replied. “They were legislative issues. And this is one of those issues. And there may be more.”
He added, “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.” He said he’d have to see the actual legislation, but “ultimately, if it’s constitutional, we’re going to go defend it.”
There is precedent for state attorneys general to refuse to defend laws they oppose. Vice President Kamala Harris, when she was attorney general of California, declined to defend Proposition 8, the voter-approved measure that revoked marriage equality in the state. When Roy Cooper, now North Carolina’s governor, was the state’s AG, he refused to defend the law restricting restroom use by trans people.
But willingness to defend an anti-LGBTQ+ law is completely in keeping with Paxton’s record. He has sued over the transgender-inclusive provisions of the Affordable Care Act and over the guidelines issued by President Obama’s administration on equal treatment of trans students. Most recently, he issued the opinion that allowing one’s trans children to receive gender-affirming health care is child abuse, and based on that, Gov. Greg Abbott ordered the state’s child welfare agency to investigate parents who let their kids access this care (the investigations are currently blocked by a court order).
Paxton’s comments have civil rights activists worried. “People are still reeling from Roe, and we’re in an incredibly toxic political environment right now,” Oni Blair, executive director of the American Civil Liberties Union of Texas, told The Washington Post. “But we need to recognize that nothing is off the table at this moment. All of our rights and liberties — from LGBTQ equality, voting, and even contraception — could be at risk.”
“We put up a valiant fight here, and we are being attacked in every direction,” Ricardo Martinez, chief executive of Equality Texas, told the paper. “It is not the government’s business who we have sex with. They’ve intruded into doctor’s office and the classroom; now they want to intrude into the bedroom. This is government overreach.”
Rochelle Garza, the Democrat running against Paxton in November, tweeted that he must be stopped.