Little known fact: Texas criminal law still bans “homosexual conduct.”
According to The Texas Tribune, the ban is no longer enforceable “because of a 2003 U.S. Supreme Court ruling.”
But a state statute banning sex between people of the same gender remains on the books.
In 1973, Texas made homosexual conduct a criminal act. People caught in the crime could be fined up to several thousand dollars and face jail time. Three decades later, the U.S. Supreme Court struck down the law in Lawrence v. Texas — a landmark civil rights case. The ruing invalidated similar sodomy bans in 13 other states.
Nevertheless, the ban has yet to be officially removed from the state’s penal code.
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While the unconstitutional ban isn’t enforced by police, it can still cause a fair amount of confusion. In a 2011 article, Mother Jones chronicled a 2009 case in which two men who were kissing at a restaurant in El Paso were threatened with jail, and police cited the “homosexual conduct” statute as their rationale.
Related: 2 Guys Kiss in Texas Restaurant, Get Kicked Out, Threatened By Cops
In that case, two anonymous men kissed while in line to order food at Chico’s in the El Paso area.
They were among a group of five gay men, who then sat down after ordering.
The restaurant’s security staff asked them to leave, and guards forced them out the door.
At 12:30am on June 29, the group called the police, thinking they’ll be backed up for Chico’s discrimination.
Related: Why Is One Cop So Obsessed With Luring Gay Men Into Public Restrooms To Arrest Them?
No dice: A police officer, arriving an hour later, told the group it was illegal for two men to kiss in public, citing the “homosexual conduct” ban.
Though it’s since been removed, Chico’s Wikipedia page was updated after the incident to say that the establishment was “recently made famous for forcefully ejecting five gay men because of ‘that faggot stuff’, after two of the men kissed.” (However, the Wikipedia entry now features a lengthy section about the controversy.)
Democratic lawmakers are trying to get the language repealed during this legislative session, and it’s hardly the first time they’ve made such an attempt.
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Despite the “homosexual conduct” ban being wholly constitutional and totally unenforceable, every attempt to permanently remove the language from Texas’s criminal law has completely failed.
Take from that what you will.
captainburrito
“Despite the “homosexual conduct” ban being wholly constitutional and totally unenforceable”
I think you mean unconstitutional.
Gina
This is not an uncommon occurrence. May state constitutions and criminal codes have provisions that have been ruled unconstitutional by federal courts and/or obviated by federal statute. I believe there are still eight state constitutions that still have language imposing religious tests and/or official religions on the citizens in the states – even though the federal constitution prohibits both things.
This article is correct about those sort of obsolete provisions being abused by state officials to serve their own political or religious agendas. In Virginia a few years ago, the then-attorney general, Ken Cuccinelli, tried for years to enforce the state sodomy statute, even though it was one of the state laws thrown out by Lawrence v. Texas. One of the convictions he obtained was challenged in federal court and overturned both at the district and appellate court levels, Cuccinelli appealed to the Supreme Court, which refused to hear the case because the issue had already been decided in Lawrence in 2003. That case invalidated some 300 or so convictions Cuccinelli’s office had obtained since 2003!
1EqualityUSA
Rick Perry will shake in his zipper ankle boots.
baal61
Because’ Texas’ is filled with morons and bigots.
Juanjo
In a number of states, including Arkansas and Texas there have been cases since the Lawrence decision where the police arrested people for homosexual behavior, held them for the allowed time and then when the DA refused to file charges, let them go.
Sluggo2007
I used to live in Austin 30 years ago. It’s no secret that there is a large gay presence there and it was also true back then,.
DMRX
The ban is “wholly constitutional” ???
WTF Derek?!?!
Giancarlo85
Barring the little spots of blue Democrat areas in Texas, Texas is a Republican dump. Just about every state that went for the orange emperor is stuck in a different decade and holding this entire country back.
And somebody needs to recheck their spelling on their articles. Seriously.