Will this be the year when Texas’ ‘homosexual conduct’ law, declared unconstitutional by the Supreme Court in 2003, is finally repealed?
Although this year marks the 10th anniversary of the U.S. Supreme Court’s Lawrence v. Texas decision that declared the Texas “homosexual conduct” statute unconstitutional, the sodomy law remains on the books.
State Sen. Jose Rodriguez, D-El Paso, has filed a bill to repeal the statute — which is not legally enforceable — in the Senate, a first for that chamber.
Since 2005, Houston Democratic Rep. Garnet Coleman has filed bills in the Texas House to remove the Section 21.06 from the Texas Penal Code — but they’ve never made it out of committee. Coleman said he plans to file the bill again this session.
To Coleman, finishing the work of Lawrence v. Texas is personal. John Lawrence and Tyron Garner, two gay men who were arrested in Lawrence’s apartment and charged with sodomy, lived in Coleman’s district. Both have since died.
“I spent time with them,” Coleman said. “I have feeling for those two men who used their lives to right a wrong.
“The Supreme Court ruled, and this is not the law,” Coleman added.
But he acknowledged that his bill doesn’t have the 76 votes even if it gets to the floor of the House.
“The reality is the conservative, homophobic, right-wing members of the Legislature don’t want it to go to the floor,” he said.
He added that some things just take awhile. He compared 21.06 to deed restrictions that remained in place long after desegregation.
“One day in the not-too-distant future, someone will ask why we didn’t do this before,” he said.
Ken Upton, a senior staff attorney in Lambda Legal’s Dallas office, agreed, comparing the “homosexual conduct” law to keeping Jim Crow laws on the books.
“It causes confusion,” Upton said. “Police use it as a reason to stop and detain.”
In 2009, two gay men were kicked out of a restaurant in El Paso for kissing, and the police were called.
The officers threatened to arrest the men and charge them under the homosexual conduct law even though that provision applied to oral and anal sex only, not kissing.
But the confusion the statute causes is also a legal confusion, Upton said, because several other laws reference 21.06, and they cannot be enforced either.
Upton said some legislators want to keep the law on the books as a statement of governmental position. They believe sex between two consenting people of the same gender should be illegal no matter how the Supreme Court ruled a decade ago.
Even those who privately agree the law shouldn’t include unenforcible provisions don’t want to be on record as voting for repeal.
Some even believe it should stay on the books just in case Lawrence v. Texas is ever overturned.
But Upton said that in the unlikely event the 2003 decision is reversed, the Legislature would have to pass a new sodomy law because 21.06 as it appears in the Penal Code was struck down and will always remain invalid.
Upton said getting the law off the books would be important for dignity.
“It sends the wrong message to younger people,” he said.
Jon Davidson, Lambda Legal’s national legal director, said in an email that despite Lawrence, some judges use failed repeal efforts to hold that states still wants these laws to have some effect.
“Some courts (outrageously) have relied on the existence of still-on-the-books sodomy laws to justify various kinds of anti-lesbian and -gay rulings — such as that the state disapproves of lesbians and gay men being parents,” Davidson said.
In Texas, 21.06 remains on the books with the disclaimer, “Section 21.06 was declared unconstitutional by Lawrence v. Texas, 123 S.Ct. 2472” written above it.
Texas is one of 18 states that still have sodomy laws on the books, and one of only four where those laws apply only to homosexual acts.
Jonathan Saenz, president of the anti-gay group Texas Values, declined to discuss his position on legislation to repeal the sodomy law, other than to say, “It won’t pass.”
Republican Gov. Rick Perry has called the sodomy law “appropriate” and in his 2010 book Fed Up! he referenced the Supreme Court when he wrote, “Texans have a different view of the world than do the nine oligarchs in robes.”
However, when he was running for president in December 2011, Perry said he couldn’t remember the Lawrence case when he was asked about the ruling.
“I wish I could tell you I knew every Supreme Court case,” he said. “I don’t, I’m not even going to try to go through every Supreme Court case, that would be — I’m not a lawyer.”
Since then, Texas Republicans have written a new state party platform, for the first time removing language that said homosexual activity should be criminalized. That could give some Republicans cover to vote for repeal.
Rob Schlein, president of the gay GOP group Metroplex Republicans, is among those who’ve fought to remove anti-gay language from the platform.
Schlein said he hasn’t spoken to other Republicans about the repeal issue but feels the language should be removed from the Penal Code.
“It’s a good idea to clean up any laws on the books that are unconstitutional no matter what they are,” he said.
Equality Texas Executive Director Chuck Smith agreed.
“There’s no valid reason to keep any part of the legal code declared unconstitutional on the books,” he said.
Smith said some lawmakers want to leave it there as a policy statement.
“Some don’t think gay people should be treated equally and want to hold it over their heads,” he said.
But in lobbying to legislators, Smith said he won’t argue gay rights. He’ll simply focus on the importance of removing unconstitutional language from the law.
He called the bill important but he’s waiting to see committee assignments before setting Equality Texas’ priorities for the session.
In the Senate, he said Rodriguez sits on both the Criminal Justice and Jurisprudence committees, where it will likely be assigned.
Lambda Legal, which took the Lawrence case to the Supreme Court, will be celebrating the 10-year anniversary of the decision at the Lawrence Breakfast in Houston coinciding with that city’s Pride celebration.
In Dallas, the celebration will be part of the Landmark Dinner in August to be held at the Hotel Palomar.
“This year we’ll make it something special,” said Roger Poindexter, Lambda Legal Dallas Regional Director.
But he said depending on how the Supreme Court rules in two marriage equality cases expected to be decided in late June, there might be a much larger celebration this year.
This article appeared in the Dallas Voice print edition February 22, 2013.