Not a headline I ever expected to write. U.S. Sen. Ted Cruz says Texas should repeal a decades-old state law that criminalizes gay sex.
“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.
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.”
His remarks make Cruz the most prominent Texas Republican to call for the repeal of one of the state’s longstanding anti-LGBT laws.
State lawmakers in Texas banned “homosexual conduct” nearly 50 years ago. Known colloquially as the “sodomy ban,” the law has been unenforceable since the U.S. Supreme Court declared it unconstitutional in 2003. But it has remained on the lawbooks despite Democrats’ repeated efforts to repeal it.
Now, the long-defunct law has been thrust back into the headlines in the wake of the high court’s recent decision to overturn the Constitutional right to abortion under Roe vs. Wade. In that decision, Justice Clarence Thomas urged the court to reconsider two other rulings upholding LGBT rights — including the one striking down Texas’ sodomy ban.
The junior senator is not considered an ally of the LGBT community. In fact, last week he said the Supreme Court was “clearly wrong” to legalize same-sex marriage. But Cruz’s stance shows that, even among some on the far right, criminalizing consensual gay sex goes too far.
LGBT activists say his support is little more than lip service when considering the mountain of attacks lesbian, gay, bisexual and, especially, transgender Texans are currently weathering.
“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,” said Ricardo Martinez, CEO of the LGBT rights group Equality Texas.
Do Texas politicians support the sodomy law?
The Texas sodomy law, passed in 1973, made it a crime for anyone to engage in certain sexual acts, including oral or anal intercourse, with another person of the same sex.
The law — and similar statutes in 12 other states — became unenforceable when the Supreme Court declared it unconstitutional nearly 20 years ago.
But it has remained on the books, at times creating confusion about its validity. In 2009, for example, two men who kissed in an El Paso restaurant were asked to leave and told they were violating the state’s ban on homosexual conduct.
Texas Democrats have tried to repeal the law every session since the Supreme Court’s ruling. One bill was voted out of committee in 2017, with Republican support, but never got a vote on the House floor.
There was new hope after 2019, when GOP Rep. Dade Phelan praised Donald Trump for pledging to advocate against foreign laws that criminalize homosexuality. When a Democratic legislator then asked whether Phelan would also support removing Texas’ ban on gay sex, he said he supported an “omnibus decriminalization bill next session.”
“We have to get over our love affair with the penal code,” Phelan, R-Beaumont, tweeted back. “Focus on the true dangers!”
Phelan was elected Speaker of the Texas House in 2021. Several Democrats filed bills to repeal the ban that year. Not one was debated.
Asked this month, the speaker declined to comment on whether he would support repealing the law when lawmakers meet again in January 2023. The state’s other top statewide officials — Gov. Greg Abbott, Lt. Gov. Dan Patrick and Sen. John Cornyn — did not respond to questions.
The News could not find any recent statements from Abbott or Patrick about the sodomy ban. Cornyn criticized the Supreme Court’s ruling in 2004 because he correctly predicted it would someday justify legal gay marriage, which he called “a rather ominous succession of events.”
Their silence comes as anti-LGBT rhetoric has reached renewed levels of ferocity.
Conservative activists are dredging up decades-old anti-gay language such as “groomer” and “pedophile,” and state lawmakers are promising to target the rights of transgender Texans. Abbott has targeted gender-affirming care for transgender youth and Patrick, who heads the Senate, now wants to pass a Texas version of Florida’s law banning the discussion of sexual orientation in classrooms.
This year, the state GOP added a new plank to its platform declaring homosexuality to be “an abnormal lifestyle choice.”
Amid this pitched battle, Thomas put the long-defunct state ban on gay sex back in the mix. In a concurring opinion to the high court’s decision to overturn Roe, he called the 2003 ruling on Texas’ sodomy law “demonstrably erroneous” and said the court should revisit the decision as soon as possible.
His statement rocked an already battle-scarred movement and had LGBT rights advocates asking, would states actually criminalize gay sex once more?
Texas Attorney General Ken Paxton was asked this question just weeks later. He largely demurred, deflecting pointed inquiries about the sodomy law, but said he would live up to his job of defending state law.
When he was solicitor general, Cruz made a different decision.
Gay sex vs. gay marriage
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.
The decision had some wondering about Cruz’s stance on the law at the time. His boss then was Abbott, who was attorney general. Now senator, Cruz has clarified his opposition.
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.
“If I were a member of the Texas Legislature, I would vote to repeal it,” Thomas wrote in his dissenting opinion. “Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated.”
Cruz’s office did not respond to follow-up questions about whether he believes the Supreme Court was correct to declare Texas’ sodomy ban unconstitutional.
This is notable because that question — whether states or the Supreme Court should be the final arbiter on these issues of personal liberty and privacy — is at the center of many of the country’s most contentious current debates over LGBT rights.
If Cruz does believe the issue of homosexual sex should be left up to the states, then this view conforms with, instead of contradicts, his recently stated views on same-sex marriage.
In remarks posted to his YouTube channel this month, Cruz said the Supreme Court overreached by invalidating state laws that banned gay marriage.
In addition to the defunct law criminalizing homosexuality, Texas also still defines marriage as between one man and one woman in both statute and its state constitution even though the Supreme Court declared these bans unconstitutional in 2015. If either the marriage or sodomy rulings are overturned, like Roe, conservative lawmakers in Texas and other states may be able to ban this behavior once again.
“[The same-sex marriage ruling], like Roe vs. Wade, ignored two centuries of our nation’s history,” Cruz said. “Marriage was always an issue that was left to the states.”
But then Cruz softened when asked whether the court would or should reverse its decision: “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.”
He added: “I don’t think this court has any appetite for overturning any of these decisions.”
Days later, the U.S. House passed a bill that would enshrine protections for same-sex and interracial marriage in federal law. It’s unclear whether it will pass the Senate.
Martinez said he is open to anyone who wants to defend LGBT rights — but was critical of Cruz.
“We are delighted to hear that Ted Cruz supports basic liberty and privacy,” he said. “Does his 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?”
Texas Democrats also welcomed Cruz’s statements but were less sanguine about whether they’d have any wins on LGBT issues in this political climate.
“It actually gives me some hope, honestly,” said Sen. Nathan Johnson, a Dallas Democrat who filed a bill last session to repeal the sodomy ban. He and Cruz can agree on one thing, he said: “There are few things as fundamentally private as what you do inside your own home.”
Rep. Jessica González, vice chair of the Texas House LGBTQ Caucus, said Cruz may simply be playing politics.