Metro Weekly

Ted Cruz Says Texas Should Repeal Its Law Criminalizing Gay Sex

Despite Cruz's stated opposition, it will be up to Texas Republicans in the legislature whether the law is ever repealed.

Ted Cruz – Photo: Gage Skidmore

U.S. Senator Ted Cruz (R-Texas) says his home state should repeal a now-defunct anti-sodomy law  that criminalizes same-sex relations.

“Consenting adults should be able to do what they wish in their private sexual activity, and government has no business in their bedrooms,” a spokesman for Cruz told The Dallas Morning News.

Prior to 1960, most states had laws criminalizing not only same-sex relations, but oral and anal intercourse between heterosexual people — even if they were married. In 1973, Texas lawmakers revised the criminal code to allow heterosexual anal and oral intercourse, but kept the prohibition on same-sex intercourse in place. However, that law was nullified by a 2003 U.S. Supreme Court decision, Lawrence v. Texas, which declared the law — and similar statutes in at least 13 other states — unconstitutional.

Although Texas Democrats have repeatedly attempted to repeal the now-unenforceable law — which carries a fine of $500 per offense, with potential enhancements for repeated violations — Texas Republicans, who control the legislature, have resisted any attempts to remove the provision.

Against this backdrop, Supreme Court Justice Clarence Thomas opined, in a recent decision overturning federal protections guaranteeing the right to an abortion, that the nation’s highest court should revisit a number of other cases dealing with “unenumerated rights,” including the Lawrence decision. 

Texas’s Republican Attorney General, Ken Paxton, further elevated the issue after saying in an interview that he would defend the anti-sodomy law if the Supreme Court overturned its decision in the Lawrence case. 

In light of the recent debate, The Dallas Morning News asked the state’s top statewide elected officials whether they believe the sodomy law should be repealed. Cruz’s office was the only one to comment.

While Cruz is not considered an ally to the LGBTQ community, his spokesperson’s statement took many by surprise. Last week, Cruz opined on his regular podcast, The Verdict with Ted Cruz, that the Supreme Court was “clearly wrong” to legalize same-sex marriage in the 2015 Obergefell v. Hodges case, saying marriage should be left to individual state legislatures to decide, not courts.

However, Cruz also conceded in that episode that he did not believe the court, as currently constituted, had the appetite for overturning its decision in Obergefell, noting that it doing so would create a logistical nightmare for same-sex couples who have entered into legally-recognized marriages and state and federal officials trying to determine things like inheritance rights, same-sex adoption and parental rights, or insurance and Social Security survivor’s benefits.

Cruz doubled down on his comments regarding marriage equality in a July 23 episode of his podcast, telling co-host Michael Knowles that the Supreme Court “invented a brand new right” in a move that circumvented the democratic process, saying his opinion on marriage being a state’s rights issue has not changed since the Obergefell decision, reports The Hill.

Under this strict constitutionalist view, it is up to advocates of same-sex nuptials to go through the slow, deliberative process of changing public opinion and long-held attitudes of their fellow citizens, petitioning and lobbying state lawmakers to change the law, and voting in representatives who will support same-sex marriage — something that could potentially take decades to change.

As far as the sodomy law is concerned, Cruz, who previously served as Texas’s solicitor general when the Lawrence case was being litigated, chose not to defend the law in front of the Supreme Court, allowing the local prosecutor to argue in favor of enforcing the sodomy law against a same-sex couple who had been caught violating it. 

Cruz’s spokesman told The News that the senator believes the anti-sodomy statue is “an uncommonly silly law,” borrowing a phrase that was used by Thomas in a 2003 dissent against the Lawrence decision and by former Justice Potter Stewart in a 1965 dissent against Griswold v. Connecticut, the Supreme Court case that determined the right of a married couple to use contraception without government interference. 

In his dissent, Thomas 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.” However, the justice dissented based on the idea — embraced by strict constitutionalists — that the U.S. Constitution does not guarantee a right to same-sex sodomy, thus making the issue one that should be decided by individual state legislatures.

As such, then, Cruz’s stated opposition to the law puts the decision back into the hands of Texas Republicans who control the state legislature. While Texas Democrats have tried to repeal the law during every legislative session since the Supreme Court decision was issued, the furthest they’ve gotten was when a bill to repeal the statute emerged from a Texas House of Representatives committee with Republican support, only to be denied a floor vote by then-House Speaker Joe Straus.

Current House Speaker Dade Phelan, who is considered a more “moderate” conservative within the Texas Republican Party, previously praised former President Donald Trump for an initiative encouraging foreign nations to repeal their laws criminalizing homosexuality, but has given no assistance to lawmakers seeking to repeal Texas’s own statute.

Ricardo Martinez, the CEO of Equality Texas, said he’s open to anyone willing to defend LGBTQ rights, but is skeptical of Cruz’s sincerity.

“We are delighted to hear that Ted Cruz supports basic liberty and privacy,” Martinez told The News. However, he questioned whether Cruz would be as consistent when opining on other LGBTQ issues that are likely to come before the legislature, such as a Florida-style “Don’t Say Gay” bill or attempts to prosecute and penalize parents who allow their transgender children to access gender-affirming care. 

“Does [Cruz’s] love of liberty extend to teachers and students being open about their queer identities in the classroom?  Does his love of privacy extend to parents and doctors who are caring for trans children?” Martinez asked. “While we welcome bipartisan support to repeal an antiquated and harmful law, we must ensure that the same government overreach is not replicated with trans health care today.”

Also playing a role is the ascendency of social conservatives within the Republican Party. Recently, as Democrats have embraced LGBTQ rights more fully, conservative activists — especially those within the GOP — have positioned themselves in opposition to any form of LGBTQ visibility. Activists have dredged up decades-old tropes about gays being pedophiles and accusing liberals of “grooming” children by exposing them to “gender ideology.”

In Texas, the state GOP recently adopted a platform declaring homosexuality to be an “abnormal lifestyle choice,” and reiterating opposition to any law that recognizes same-sex marriages — or legal agreements that elevate same-sex relationships to the level of marriage —  as valid. As such, many Democrats are skeptical that any progress on LGBTQ rights can be made in the state as long as Republicans control the legislature.

State Rep. Jessica González (D-Dallas), the vice chair of the Texas House LGBTQ Caucus, went even further, questioning Cruz’s motivations for opposing a law that is unlikely to be repealed anytime soon.

“Maybe he’s just seeing the writing on the wall that Republicans have gone too far,” she said. “There may be a little hope. There may be some wiggle room. But who’s to say?”

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