Not a headline I ever expected to write.
But in fairness to Cruz, he’s always let his libertarian side show a bit more when it comes to what consenting adults do in the bedroom. Five years ago, in an interview with CNN, he was asked why he once defended a state law in Texas that banned the sale of sex toys. Because I worked in the attorney general’s office and it was my job, he replied, before allowing that he thought the law was “stupid.”
The fact that gay sex is still banned — sort of — in Texas is on the minds of reporters in the wake of the Dobbs ruling. In his concurrence in that case, Clarence Thomas endorsed revisiting major substantive due process precedents like Lawrence v. Texas, in which the Kennedy-led Court struck down Texas’s anti-sodomy law. That law remains on the books in the state but is unenforceable so long as Lawrence also remains on the books. The question raised by Thomas’s concurrence is … what if it doesn’t? Under the reasoning of Alito’s majority opinion, unwritten rights are protected by the Constitution only if they’re deeply rooted in the history and tradition of the country. The right of gays to have sex without criminal penalty is not one of those, needless to say.
Which leaves Cruz in a minor political jam. He knows that the end of Lawrence would instantly place gays in his home state at risk of prosecution, something that would be highly unpopular among most Americans. He’s also on record as believing that Obergefell, the case that created a right to gay marriage, was wrongly decided. It would be hard for him to argue that Obergefell was wrong but Lawrence was right so he needs a non-constitutional way to spare gays from criminal liability for having sex if Lawrence is overturned.
It’s simple, he says. Texas can just repeal their damned law.
But is it that simple?
“Consenting adults should be able to do what they wish in their private sexual activity, and government has no business in their bedrooms,” Cruz’s spokesman told The Dallas Morning News…
Cruz’s relationship with the state sodomy law dates back nearly two decades. As the state’s top appeals attorney in 2003, he was expected to defend the law in front of the Supreme Court. But Cruz chose not to, leaving the job up to a local prosecutor…
In his statement to The News, his spokesman said the senator believes that the sodomy ban is “an uncommonly silly law.” He quoted Thomas, who used this phrase in 2003 to criticize the Texas law while also stating that he believes the issue of whether to ban homosexual sex should be left to the states.
I’m reasonably confident that if Texas were starting from scratch, the GOP majority in the state legislature wouldn’t criminalize gay sex. Too many voters would oppose it. It would be a solution in search of a problem.
But we’re not starting from scratch. We’re starting from a position in which there’s a law on the books criminalizing gay sex and Republicans would have to act affirmatively to decriminalize it. Which makes things a little different.
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I’m convinced that the federal prohibition on marijuana abides for the same reason. It’s not that a majority of members of Congress think it’s a good idea that’s worth preserving. It’s that a majority of members don’t want the headache of taking the initiative to undo the ban, which will bring out angry activists who support keeping it in place. If there were no marijuana ban on the books and Congress declined to pass one, few would deduce from that that Congress is “pro-marijuana.” Inaction can always be defended as a matter of having other, more important legislative priorities.
But passing a law that repealed the ban would explode that excuse. It would mean that marijuana policy *is* a priority and that Congress is on the side of the legalizers. Social conservatives would want an explanation from any Republicans who joined with Democrats on repeal. Why are they helping the libs undo a policy that was already in effect and kept some Americans from engaging in immoral behavior?
The same logic would apply to Texas’s legislature if Lawrence were overturned and the anti-sodomy law went back into effect. Which Republican lawmaker wants to stand up before his constituents and pronounce himself a proud supporter of the freedom to have gay sex, so much so that he’s willing a take a law that’s on the books out of commission? Particularly at a moment when cultural battles over trans rights and normalizing homosexuality in schools are being fought across the country?
My guess is that if Lawrence disappeared, Texas legislators would decline to act on the theory that no D.A. anywhere in the state will actually prosecute a gay couple. And then they’d grit their teeth and quietly hope that no D.A. anywhere in the state actually prosecuted a gay couple.
Cruz himself made a variation of that argument recently when asked about his opposition to Obergefell. It’s unlikely that the Supreme Court will act to overturn it, he said, because “you’ve got a ton of people who have entered into gay marriages and it would be more than a little chaotic for the court to do something that somehow disrupted those marriages that have been entered into in accordance with the law.” That’s true — there’s a serious reliance interest at stake — but the Court could aways “grandfather in” extant gay marriages in a new ruling overturning Obergefell, freeing states to ban future ones. That’s why Senate Dems are taking no chances, trying to rustle up 10 Republican votes for the gay marriage bill that recently passed the House. There are five Republicans in favor officially, but unofficially?
“There are more,” said Sen. Thom Tillis, a Republican from North Carolina, when asked if backers had added more GOP names to the list of supporters — which stood at five last week — although he refused to say exactly how many.
“There are others who are privately mulling and leaning in that direction,” agreed Wisconsin Democratic Sen. Tammy Baldwin, another sponsor, who said Democratic absences due to Covid could impact the timeline of when Senate Majority Leader Chuck Schumer schedules a vote, meaning it could be pushed past the August recess. “We will move when we’re sure we have 10. But I think I would not be surprised if we had significantly more in the end.”
Republican Sen. Susan Collins of Maine, a co-sponsor of the Senate version of the bill, told CNN on Tuesday morning that they are “very close” to finding 10 Republican votes.
Marriage is traditionally a state issue but the House bill leverages Congress’s power under the Full Faith and Credit Clause to require states where gay marriages might be banned post-Obergefell to honor those performed in states where it isn’t. Congrats to blue states on their upcoming “gay wedding tourism” boom.
I’ll leave you with an annoyed Joe Rogan, who’s dismayed enough by GOP opposition to the House bill that he’s warning people to stop calling him a secret Republican. Strong language here, as usual.
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