It may appear that gay marriage is a long way off in Texas, but at least an unconstitutional “sodomy law” is finally being repealed. (Admittedly, this a low standard.) Ten years ago, the US Supreme Court ruled in Lawrence v. Texas that section 21.06 of the Texas Penal Code, which designates “homosexual conduct” a criminal offense, violated the privacy and liberty of adults.
Late Wednesday afternoon, the Senate Criminal Justice Committee took up Senate Bill 538, authored by Sen. Jose Rodriguez (D-El Paso), which would “repeal ‘homosexual conduct’ as a criminal offense.” The legislation would remove section 21.06 and any other references to the section in Texas law.
Rodriguez says that this law is unenforceable and needlessly costing the state money. The immediate impetus for repeal was an unconstitutional arrest in 2009. “This defunct law was grounds for the police to arrest patrons in a restaurant in my district, resulting in a suit against the city of El Paso,” Rodriguez said. “Not only is the continued existence of this law on the books a source of misinformation for law enforcement, but in my own district local governments have been forced to spend their limited resources due to this misuse.”
Charles Spain spoke on behalf of the State Bar of Texas. “The confusion in El Paso came from two people who were kissing,” he said. “The police officers thought that was ‘homosexual conduct.’”
Rodriguez explained that the legislative program of the State Bar of Texas requires, as of 1963, that the state change any “statutes that have been revised or declared invalid. Well, this is exactly what the state bar has recommended here with regard to this particular provision.”
Chuck Smith, Executive Director of Equality Texas, spoke in favor of the bill. “This week the Montana Legislature has passed a similar repeal legislation, and Montana Gov. Steve Bullock is expected to sign it into law. That would leave only the states of Texas, Oklahoma, and Kansas as the only three states in the country that still have the statute on the books,” he said.
Update: The bill was voted out of committee 5-0.
[This post was updated at 10:30p.m. on April 17, 2013.]