A provocative bit of fallout from the Dobbs decision, or rather from Clarence Thomas’s opinion concurring in that decision. Remember that Thomas urged the Court to go further and sweep away all of the unwritten “substantive due process” rights established by SCOTUS precedents over the past 60 years. If there’s no constitutional right to abortion because that right historically wasn’t recognized in America, logically there’s obviously no right to contraception either. And no right for people to engage in non-procreative sex, i.e. sodomy. And no right for gays to marry.
Leland Vittert put Texas attorney general Ken Paxton on the spot about that yesterday. Now that Thomas has called those rights into question, he asked, would you be willing to push the envelope further by defending a state prosecution for sodomy? It was a Texas law, after all, that was struck down in the famous Lawrence decision 20 years ago barring states from criminalizing non-procreative sex. Texas would therefore be a natural candidate to test the sturdiness of that precedent by charging someone for the offense in 2022.
Some on the left see Paxton’s answer as a sign that he’s ready to do so, that the proverbial slope has already begun to get slippery. I see his response as evasive, not much more than word salad designed to spare him from committing to a position which he knows would be fraught politically.
Paxton does say at one point, “The Supreme Court has stepped into issues that … were legislative issues. And this is one of those issues.” But when Vittert presses him he turns ambivalent, insisting that he’d have to look at the statute and make a judgment as to whether he thinks it’s constitutional. He doesn’t sound enthusiastic; he merely says that, as attorney general, he’s duty-bound to defend any state law that doesn’t obviously run afoul of the Constitution. It’s a maybe, not a yes.
But liberals don’t want to hear “maybe.” They want to hear that prosecutors will take the law into their own hands, whatever a majority of a state’s legislative representatives may happen to think about it.
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 Nov.
When I’m Attorney General, Texans will have a Civil Rights Division to protect ALL of our rights.
Y’all means all. Period. https://t.co/PlfnF6vvNg
— Rochelle Garza (@RochelleMGarza) June 28, 2022
That’s Paxton’s Democratic opponent, running on a platform that may amount to de facto nullification of statutes she disagrees with. And she’s not alone. Vittert’s interview with Paxton began by noting how many local district attorneys in Texas have vowed not to enforce the state’s abortion ban. In Austin, the city council may formally direct the police to deprioritize abortion arrests in order to make it easier for violators to skirt the law. At last check, upwards of a hundred prosecutors across the country were vowing not to charge people for performing abortions:
“Not all of us agree on a personal or moral level on the issue of abortion,” said the statement signed by 84 prosecutors, a group that included district attorneys and state attorneys general. “But we stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions. As such, we decline to use our offices’ resources to criminalize reproductive health decisions and commit to exercise our well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.”
The prosecutors said enforcing abortion bans would also “hinder our ability to hold perpetrators accountable, take resources away from the enforcement of serious crime, and inevitably lead to the retraumatization and criminalization of victims of sexual violence.”
Liberal prosecutors don’t want to enforce abortion laws on the books even though they are, unambiguously as of Friday, constitutional. Conservative prosecutors, meanwhile, are also eyeing laws that are on the books and wondering if those might suddenly have become constitutional too. For instance:
Fact: the Texas constitution still recognizes marriage as “the union of one man and one woman.”
This is the pretext AG Paxton and Greg Abbott will use to challenge Lawrence and Obergefell now that Roe is gone. Gay marriage and relationships are next. pic.twitter.com/DIdzN8RYsX
— Sawyer Hackett (@SawyerHackett) June 28, 2022
Paxton could try to prosecute a gay married couple for violating the Texas Constitution and ask SCOTUS to revisit Obergefell. Likewise, 16 states still have anti-sodomy laws even though they’re momentarily unenforceable under the Lawrence decision. Paxton wouldn’t necessarily need to wait for the Texas legislature to pass something new, in other words, in order to get the Court to take a second look at Lawrence. He could simply say that he agrees with Clarence Thomas that the logic of the Dobbs decision calls all of substantive due process into question, therefore anti-sodomy laws are no longer illegal, and proceed from there.
Yeah, yeah, granted, Alito’s majority opinion and Kavanaugh’s concurrence each specified that the Dobbs ruling applied only to abortion, not to other “privacy” rights. But that’s only because the Court hasn’t yet squarely reconsidered those rights in the context of sodomy or gay marriage. Or contraception, for that matter.
Paxton has a duty not to enforce a law which he believes in good faith to be unconstitutional. Now that there’s genuine doubt as to the constitutionality of substantive due process, however, it’s defensible for him to say that his duty would require him to defend an anti-sodomy law even if he doesn’t agree with it.
I suspect his private opinion, like the private opinions of damn near every elected Republican in the country, is “Don’t bother me with this when we already have our hands full figuring out how to handle abortion.” In fact, some liberals are hoping to go on offense by forcing Republicans to vote on gay rights in the aftermath of Dobbs:
New uncertainty around the Supreme Court’s privacy jurisprudence presents Democrats a moment to bring marriage back to the fore. In Congress, they could reintroduce the Respect for Marriage Act, which was drafted to repeal the Defense of Marriage Act but effectively abandoned after the Supreme Court struck down part of the law in 2013. If the court were to one day return to states the ability to ban same-sex unions, the legislation would set a clear standard for which relationships the federal government would have to recognize.
These would likely present difficult votes for Republicans in the House and Senate. Indeed, in only four southern states do Public Religion Research Institute surveys find marriage equality failing to win majority support. Everywhere, backing for same-sex marriage is higher than Biden’s vote share; in some battleground states, like Arizona and Wisconsin, the gap is 20 points or more.
Abortion is treacherous political ground for Dems because everyone understands the pro-life moral argument against it. One doesn’t have to agree with the Dobbs majority to grasp why states would want to prevent the killing of children in the womb. The moral argument against voiding the marriages of two consenting adults of the same sex is much friendlier to the left, especially when those marriages involve children. If you’re going to undo a constitutional right that Americans already enjoy and rely upon, “no more dead babies” is a lot more compelling as a justification than “marriage should be between a man and a woman.”
Maybe Democrats are about to make Republican legislators show their cards on gay marriage, knowing that the polling strongly favors their side. How many righties in 2022 are prepared to send gays to prison on sodomy charges if they’re caught in the act? Republicans can thank Clarence Thomas for forcing the issue.
Here’s Sean Hannity trying to reassure nervous centrists that Dobbs won’t lead to a slippery slope in which abortion is suddenly banned in battleground states like Michigan, only to be told that it’s … already banned there right now.
Sean Hannity: "They're also lying to everybody, because abortion is not illegal. It's not going to be illegal in your state of Michigan. I'd bet my last dollar that's not gonna be the case. Am I wrong?"
Congressman Tim Walberg: "No, it is illegal in the state right now" pic.twitter.com/hq8AjNv257
— Brendan Karet (@bad_takes) June 28, 2022