Shortly after the Supreme Court struck down Roe v. Wade, Texas Attorney General Ken Paxton (R) appeared to express support for Justice Clarence Thomas’s concurring opinion that the high court could review other precedents that may be deemed “demonstrably erroneous,” including those affecting the LGBTQ community, reported The Washington Post.
One of the cases mentioned by Thomas was Lawrence v. Texas, which prevents states from banning intimate same-sex relationships. The landmark 2003 ruling struck down a 1973 Texas law that criminalized the act of sodomy. But as Roe was overturned, Paxton said he would defend the state’s defunct sodomy law if the Supreme Court were to follow Thomas’s remarks and eventually revisits Lawrence.
“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 said in a Friday interview with NewsNation anchor Leland Vittert. “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.”
When asked whether the Texas legislature would pass a similar sodomy law and if Paxton would defend it and bring it to the Supreme Court, the Republican attorney general, who is running for reelection in November, suggested he would be comfortable supporting a law outlawing intimate same-sex relationships.
“Yeah, look, my job is to defend state law, and I’ll continue to do that,” Paxton said to Vittert. “That is my job under the Constitution, and I’m certainly willing and able to do that.”
Thomas took aim at Lawrence in an opinion concurring with his conservative colleagues on the Supreme Court to overturn Roe. The justice also mentioned Griswold v. Connecticut, the 1965 ruling allowing married couples the right to buy and use contraception without government restriction, and Obergefell v. Hodges, the 2015 case that legalized marriage equality.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote on Page 119 of the opinion in Dobbs. “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”
Thomas added, “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.”
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