In 2003, the U.S. Supreme Court found Texas’ ban on homosexual conduct to be unconstitutional. More than 20 years later, the Legislature could take its first steps to remove that prohibition from the books.
On Thursday, the Texas House voted 72-55 to preliminarily approve House Bill 1738, which would remove the unenforceable 1973 law from state statute. Twelve Republicans joined with Democrats to vote for repeal.
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The Texas House is scheduled to vote on House Bill 1738 Thursday to remove the 1973 law, which has been unenforceable since the Supreme Court’s ruling in Lawrence v. Texas. Since that decision, an increasingly bipartisan coalition of lawmakers have filed bills to remove the dead law from state statutes.
Last session, the bill failed to pass before the House deadline. This year, it faces similar time constraints, with many bills and little time before the clock expires Thursday.
If the House passes the bill, it must go to the Senate, where it’s likely to get stuck in the deluge of work left to be done before the legislative session ends June 2. But Rep. Venton Jones, a Dallas Democrat and one of the first Black gay members of the Texas House said approval among peers in his chamber is still incredibly meaningful.
“Working on this bill has been a one step at a time process, for so long,” Jones, the bill author, said. “I am standing on the shoulders of people who have carried this bill before me, and that’s where I get my strength.”
The first efforts to repeal this law date back to around the time Jones was born in 1984, he said, meaning this fight has spanned his whole life. As a gay man, knowing this law was on the books, even unenforceable, was a reminder of the state’s long-held position of discrimination against people like him.
“It means the world to me to have my fellow lawmakers agree that this shouldn’t stand,” he said.
The bill attracted an unlikely alliance of some of the chamber’s most liberal and most conservative voices. Rep. Brian Harrison, a Midlothian Republican and rabble-rouser who has spent most of the session accusing fellow House members of being insufficiently conservative, signed on as co-author.
“Criminalizing homosexuality is not the role of government, and I support repealing it,” he said in a statement. He pointed to support for repeal from conservatives like U.S. Sen. Ted Cruz and Supreme Court Justice Clarence Thomas, adding that he “will continue consistently fighting for limited government and individual liberty.“
Taking an unenforceable law off the books is, in many ways, a symbolic gesture. Because of the Supreme Court’s ruling, a prosecutor cannot bring criminal charges under this law. But the thing about “zombie laws” is they sometimes have a habit of rising from the grave.
When the Supreme Court overturned Roe v. Wade in 2022, Attorney General Ken Paxton took Texas’ old abortion statute, which had been on the books but unenforced for almost 50 years, dusted it off and declared it good law.
The question of whether he can do that remains unresolved by the courts, leading to widespread confusion and competing litigation. While there are no cases before the Supreme Court that would overturn Lawrence, the abortion ruling made removing old laws from the books a more urgent conversation, Jones said.
“It was already past time to do this, and now even more so,” he said.
This post contains content that was first published on Texas Tribune and republished here under a Creative Commons License.
