Analysis: Will Sodomy Laws Return?
July 6, 2022 Philadelphia Gay News
The July 3, 2003 cover of Philadelphia Gay News, about the Supreme Court decision in Lawrence v. Texas.
Supreme Court Justice Clarence Thomas and Texas Attorney General Ken Paxton want to bring back anti-gay sodomy laws.
In the aftermath of the Supreme Court’s reversal of the 49-year-old reproductive healthcare statute, Roe v. Wade, other long-time Supreme Court decisions are being revisited by both the Court and the states. As Texas led with the abortion ban, so too could it lead on reversing the 2003 Supreme Court ruling in Lawrence v. Texas. That case invalidated sodomy laws across the U.S., making same-sex sexual activity legal in every state and U.S. territory.
Thomas isn’t so sure that Lawrence has constitutional merit. The Court’s longest serving justice wrote in a concurring opinion that the SCOTUS should now “reconsider” rulings in several past decisions, including those on sodomy and gay marriage.
As PGN reported, Obergefell v. Hodges, which legalized same-sex marriage in 2015, is likely the next case to fall. Justice Samuel Alito, who authored the Roe decision in the Dobbs v. Jackson Women’s Health Organization case, has, with Thomas, been vocal about his continued opposition to marriage equality. In a speech to the conservative Federalist Society in 2020, Alito asserted that opposing same-sex marriage is now “considered bigotry.”
“You can’t say that marriage is a union between one man and one woman. Until recently, that’s what the vast majority of Americans thought. Now, it’s considered bigotry,” Alito said in his speech.
Alito has said that he’s not looking at other precedent-setting cases like Obergefell or Lawrence, but Thomas is. In an opinion concurring with the case overturning Roe, Thomas also noted three cases he wants reversed — Griswold v. Connecticut, the 1965 ruling allowing married couples the right to buy and use contraception without government restriction, Lawrence v. Texas, and Obergefell v. Hodges.
On page 119 of the opinion in Dobbs, Thomas wrote “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’ … 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.”
Ken Paxton concurs. In an interview last week at News Nation’s “On Balance With Leland Vittert,” Paxton talked about enforcing anti-abortion laws in Texas. The Texas AG has already created a statewide holiday “celebrating the unborn.”
Paxton was also asked if he was “comfortable” enforcing a ban on sodomy or same-sex marriage. Last month at the 2022 Republican Party of Texas State Convention, the Texas GOP approved an updated 40-page party platform that contains a series of anti-LGBTQ policies. Among those are an end to same-sex marriage and nullification of Obergefell v. Hodges.
The platform also states unequivocally that “homosexuality is an abnormal lifestyle choice” and that “there should be no special legal entitlements” or “creation of special status for homosexual behavior.”
In response to Vittert, Paxton said: “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, “They were legislative issues, and this is one of those issues, and there may be more. So it would depend on the issue and depend on what state law had said at the time.”
When pressed by the News Nation anchor, Paxton said to Vittert, “Yeah, look, my job is to defend state law, and I’ll continue to do that… If it’s constitutional, we’re going to defend it.”
Paxton added, “That is my job under the Constitution, and I’m certainly willing and able to do that.”
The organization American Bridge 21st Century, which says “We’re holding Republicans accountable,” tweeted the Paxton interview, noting, “GOP #TXAG @KenPaxtonTX said over the weekend that cases like Lawrence v. Texas — which affirmed LGBTQ+ people’s right to have sex — should go back to the states.”
Rochelle Garza, the Democratic nominee running against Paxton for AG, tweeted about his comments, “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 November."
When I’m Attorney General, Texans will have a Civil Rights Division to protect ALL of our rights. Y’all means all. Period.”
In 2003, Paxton, then a newly elected member of the Texas House of Representatives, joined an amicus brief in Lawrence v. Texas, urging SCOTUS to hold that Texas has the right to criminalize gay couples who have adult, consensual, private relationships, like those at the center of Lawrence.
According to Cornell Law School’s Legal Information Institute, “Before Lawrence v. Texas, legal punishments for sodomy included fines, life prison sentences or both. In the late 19th and early 20th centuries, several states imposed various laws against anyone deemed to be a ‘sexual pervert.’ Some States (like Illinois starting 1827) denied rights, such as suffrage to anyone convicted of sodomy. In 1970 Connecticut denied driver’s licenses to men who were ‘admitted homosexuals.’”
GLAPN (Gay & Lesbian Archives of the Pacific Northwest) notes, “Sodomy laws were often used to deny lesbian mothers custody of their children, as in the well-known case of Sharon Bottoms. In another case in Dallas in 1998, a 3-month old boy was removed from the care of two lesbians on the basis of their criminal
status: they are criminals because they are homosexual.”
Lawrence devolved from a 1973 Texas statute outlawing “homosexual conduct.” Offenders were deemed anyone who “engages in deviate sexual intercourse with another individual of the same sex.” The statute also banned “any contact between any part of the genitals of one person and the mouth or anus of another person.”
The law specified that identical behavior by different-sex couples was still permissible. Despite the ruling in Lawrence, that law remains in place in Texas, making Paxton’s comments all the more concerning.
Justice Anthony M. Kennedy authored the majority opinions in both Lawrence and Obergefell. In Lawrence, he wrote that gay and lesbian people are “entitled to respect for their private lives.”
Kennedy’s opinion asserts, “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
Kennedy added, “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”
But Justice Antonin Scalia famously countered Kennedy in a blistering dissent in which he referenced the “homosexual agenda” and said that the decision in Lawrence would lead to legalization of “homosexual marriage.”
The Court has already decided to hear one gay-related case next term: 303 Creative LLC v. Elenis. This Colorado case hinges on free speech rights.
Web designer Lorie Smith’s attorneys argue that a federal court siding with a Colorado law that says she must “work with all people regardless of … sexual orientation” violates her First Amendment rights.
PGN reported on the case last year when a U.S. appeals court ruled against Smith and her company, 303 Creative.