HOUSTON (CN) — For more than a decade Texas Democratic state lawmakers have tried to remove an unconstitutional criminal penalty for homosexual conduct from the state’s books, and a fresh set of repeal bills are ready for the 2019 session. Will it finally be purged?
The language seems medieval, given that same-sex marriage has become common in America since the U.S. Supreme Court declared it protected by the Constitution in 2015.
But there it is, clinging to the Texas Penal Code, a deformity oblivious to the rule of law: “(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. (b) An offense under this section is a Class C misdemeanor.”
A class C misdemeanor in Texas is punishable by up to a $500 fine, not jail time.
Showing determination that would make Sisyphus proud, Texas Democrats have proposed bills attempting to repeal the statute in every legislative session since the Supreme Court declared it unconstitutional in its 2003 Lawrence v. Texas ruling.
But with Republicans holding a strong majority in the Legislature — 21-10 in the Senate and 94-56 in the House — none of the bills have made it out of committee; they all died without being put to a vote.
The civil rights group Lambda Legal represented John Geddes Lawrence Jr. and Tyron Garner in the litigation that arose from their September 1998 encounter with Harris County sheriff’s deputies.
They entered Lawrence’s unlocked apartment in suburban Houston with guns drawn, walked in on him and Garner having sex and arrested the men for violating the state’s anti-sodomy statute.
The deputies were tipped off by Garner’s lover Robert Eubanks. In a jealous fit because Garner was flirting with Lawrence, Eubanks had walked out of Lawrence’s apartment, called the police and lied to them there was “a black male was going crazy in the apartment and he was armed with a gun,” according to Garner’s 2006 obituary in The New York Times, which cited a Harris County sheriff’s report.
Lambda Legal attorney Paul Castillo said the statute has caused problems for gay men, even though lawmakers amended the Texas Penal Code shortly after the ruling came down to indicate that the statute is unconstitutional.
“In the years since Lawrence, there have been numerous incidents in Texas and across the country where officials have used these illegal bans to justify harassing, detaining or illegally arresting individuals,” Castillo told Courthouse News. “Unenforceable laws are far from harmless; their mere presence causes confusion for law enforcement and, more importantly, ongoing stigma for the community.”
Such confusion led to a 2012 settlement in which El Paso agreed to pay for yearly training of its police officers to ensure they know the city’s anti-discrimination ordinance applies to sexual orientation and gender identity.
In that case, a security guard at an El Paso restaurant saw two male patrons kissing in June 2009 and told them in Spanish :“We won’t allow you to do faggot things here.”
The guard and one of the men called 911. A rookie El Paso police officer mistakenly told the men, and three male friends they were sitting with, that they could be arrested, citing the “homosexual conduct” statute.
The five men sued, leading to the 2012 settlement. The officer wrote a letter apologizing to them, stating: “I am writing you to state that I regret the way the situation was handled that evening. From this point on, as a police officer, I will enforce the city’s anti-discrimination ordinance,” an El Paso TV station reported in 2016.
So why can’t Democrats get the support of Republicans to nix the inert statute?
State Rep. Joe Moody, D-El Paso, and state Sen. José R. Rodríguez, D-El Paso, both of whom have proposed bills to repeal the statute for the 2019 legislative session, said they believe Republicans do not want to risk losing the votes of their conservative constituents.
“That’s my only explanation, because it boggles my mind,” Moody said in a telephone interview. “This isn’t making a statement about how you feel about the LGBTQ community. It’s not making a statement about your morality. It has nothing to do with that. This is simply cleaning up a criminal statute that is unconstitutional.
“So the only conclusion I can come to is there are members that are afraid to do what’s right, and to explain exactly what this bill does. I assume they think they would feel some sort of backlash from their constituents.”
Rodríguez agrees. “I think most elected officials, regardless of party, think it should be removed, but they have not been willing to take the political risk to make it happen,” he said.
Moody introduced similar legislation in the 2015 and 2017 sessions. The Texas Legislature meets every other year.
Moody said he won’t give up: “I will propose it until this unconstitutional law is taken off the books.”
Texas Republican Party Chairman James Dickey did not respond when asked through his spokesman why he thinks Republicans have not supported the repeal efforts.