Did you know that it’s against the law in Texas to engage in homosexual sex? Section 21.06 of the Texas Penal Code prohibits “deviate sexual intercourse [between] individual[s] of the same sex.”
The penal code notes that this law is unconstitutional. The Supreme Court declared this specific law unconstitutional in 2003 in Lawrence vs. Texas. The Supreme Court held that state laws that ban gay sex violate the Due Process Clause of the 14th Amendment.
Interestingly, this is the only law in the Texas Penal Code with a note that it is Unconstitutional.
Why It Still There
If the law has been held to be unconstitutional by the Supreme Court, why is it still in the Penal Code? Even though the law itself violates the US Constitution, it does not automatically get removed from the penal code. The legislature would have to repeal the law for it to be removed. In the 20 years that it has been unconstitutional, they haven’t done that.
The Texas Legislature meets every two years and is currently in session. There is a bill that has been proposed to repeal the law, but as of now the law remains. There have been bills introduced before to repeal this law, but none have passed. Even Ted Cruz agrees that this law should be repealed.
Why Does It Matter
There are at least two reasons that the law remaining in the Penal Code matters. The first, is that Supreme Court decisions are not set in stone. The Supreme Court occasionally overturns previous opinions. The most notable recent decision is the Court reversing the ruling made in Rod vs. Wade.
If the Court were to reverse its decision in Lawrence vs. Texas, this law would be enforceable again. Supreme Court Justice Clarence Thomas has even suggested that the Court should reconsider the holding in Lawrence vs. Texas.
The second is symbolic. We should stop discriminating against each other. The only purpose this law currently serves it to let gay people know that recently it was essentially illegal to be gay. Repealing the law would send the opposite message: that we recognize the Constitutional rights of the gay community.
What Can You Do
If you would like to help to get this bill passed, you should contact your state representative and let them know you support . You can find their contact information at https://wrm.capitol.texas.gov/home.
If you have any questions about this or if you are being charged with a crime in San Antonio, schedule a free strategy session with me using the button below. I would be happy to answer your questions and discuss your case with you.
The Law
US. Constitution
14th Amendment
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Texas Penal Code
Sec. 21.01. DEFINITIONS. In this chapter:
(1) “Deviate sexual intercourse” means:
(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or
(B) the penetration of the genitals or the anus of another person with an object.
Section 21.06 was declared unconstitutional by Lawrence v. Texas, 123 S.Ct. 2472.
Sec. 21.06. HOMOSEXUAL CONDUCT.
(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.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sean Henricksen
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