AUSTIN (KXAN) — Justice Clarence Thomas wrote in his concurrence to the Supreme Court’s June 24 opinion in Dobbs v. Jackson Women’s Health Organization that the court should reconsider decisions in previous “due process” cases, such as Lawrence v. Texas, which ruled criminal punishment for sodomy (non-reproductive sexual acts) as unconstitutional.
Texas Attorney General Ken Paxton, in an interview with NewsNation’s Leland Vittert, was asked if he would hypothetically lead a challenge against Lawrence v. Texas, which (if successful) could resurrect a 1973 Texas law that banned same-sex intercourse.
“I don’t know, I’d have to take a look at it,” Paxton said. “This is all new territory for us. I’d have to see how the legislation was laid out and whether we could defend it. If it’s constitutional, we’re going defend it.”
Lambda Legal senior attorney Shelly Skeen calls the law indefensible, and a violation of the Due Process and Equal Protection clauses of the 14th Amendment.
“These substantive due process rights are critical to how we walk around in the world, being free from governmental intrusion into our private life,” Skeen said. “I can’t think of anybody that I know that would want the government coming in to my private life and telling me what I can and cannot do in the privacy of my own home.”
Skeen notes that the law is one of hundreds of unenforceable laws that remain in Texas’ Penal Code.
“We have tons of laws on our books in the state of Texas that have been ruled unconstitutional. Because they’re not constitutional, they can’t be enforced,” Skeen said. “It creates more work for the legislature when there’s no need for them to go back and repeal a law.”
What happened in Lawrence v. Texas?
On Sept. 17, 1998, Harris County Sheriff’s Office responded to a report of an armed Black man acting in a threatening manner at a residence.
That report gave deputies probable cause to enter the apartment without a warrant, where they found John Lawrence and Tyron Garner. The deputies arrested Lawrence and Garner for misdemeanor “homosexual conduct,” sparking a legal battle that eventually reached the Supreme Court.
“Homosexual Conduct,” which is still in Texas’ penal code as Section 21.06, states that:
A person commits an offense if he engages in deviate sexual intercourse (“Deviate sexual intercourse” means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.) with another individual of the same sex. (b) An offense under this section is a Class C misdemeanor.
While the statute is often cited as a “sodomy ban”, it is not. Texas’ penal code does not apply any penalty to consenting different-sex couples that engage in the same acts, which are still sodomy (non-reproductive sexual acts).
“Texas was really not enforcing the statute, this was one of the first times that it had been enforced,” Skeen said.
According to law professor Dale Carpenter’s book “Flagrant Conduct,” which focuses on the Lawrence v. Texas case, the initial report was false; Robert Eubanks called it in after he left Lawrence’s apartment, angry at Lawrence for flirting with Garner (Eubank’s boyfriend at the time).
Carpenter, who interviewed Lawrence in 2011, wrote that Lawrence denied that any sexual act occurred. Even the deputies who testified to witnessing it were inconsistent in details and differed on what particular sexual act supposedly happened.
The Supreme Court’s Ruling
On June 23, 2003, the Supreme Court voted 6-3 in favor of Lawrence, ruling the Texas law unenforceable under the protections of the 14th Amendment to the U.S. Constitution.
Former Justice Anthony Kennedy wrote the court’s opinion:
When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
The court’s ruling overturned the 1986 Bowers v. Hardwick decision, in which the court had ruled that states could criminalize same-sex sexual activity. Now, the Lawrence decision renders all same-sex intercourse and sodomy bans unconstitutional and unenforceable.
Thomas, the only still-living Justice to vote against the Lawrence decision, wrote a short dissent to the court’s opinion. In it, he calls Texas’ law “uncommonly silly” and said “if I were a member of the Texas Legislature, I would vote to repeal it.”
“Punishing someone for expressing his sexual preference, through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources,” Thomas wrote.
However, he did oppose the court’s decision in Lawrence on grounds that the U.S. Constitution does not have “a general right to privacy.”
Skeen notes that Thomas’ opposition to due process protections is longstanding.
“[Thomas] said that this body of case law that’s been around for 100 years needs to go away. I think one of the things that he has wanted to promote is that substantive due process does not cover these rights or protect them from governmental intrusion,” Skeen said.