“Homosexual Conduct” state law still on the books, Senate Bill 1701 to strike it from the record

The Texas Legislator is discussing Senate Bill-1701 that would strike a law that says homosexuality is against the law from the record.

Section 21.06 of the Texas Penal code, entitled “Homosexual Conduct” reads that it is a misdemeanor for people to have sexual relations with another person of the same sex. This law has been in place since 1973 and was made to coincide with the “sodomy law” which was also in place in thirteen other states.

In 2003 the Supreme Court Case Lawrence v. Texas overturned the sodomy law in Texas and all other states with the same penalty allowing sexual activity between same-sex partners in every state in the United States.

Although this particular section of the Texas penal code was declared unconstitutional nearly a decade ago, the law still remains a part of the physical penal code to this day.

Andrew Colarusso, president of Gamma Sigma Kappa (GSK), Sam Houston State University’s gay-straight alliance organization said this law is something not to be taken lightly.

“This law is definitely still something that matters,” Colarusso said. “Even though this law may not necessarily be enforced anymore, the simple fact is that a prosecutor could still charge an LGBT individual with this crime if they so had the desire. While that may be unlikely, it only takes one occurrence for this to become a much bigger problem.”

Although cases like this may be scarce, they do happen.

It was reported that a same-sex couple in El Paso was kicked out of a restaurant after they were seen kissing, on July 9, 2009. Because the law was still on the books, the police officer who was involved became adamant that their “public display of affection” was considered a misdemeanor. As a result, the couple sued the city.

“If a case were to come up regarding this particular law, it would be up to the prosecutor or judge to use their discretion in determining how to handle the case” Colarusso said. “Given that this law is still on the books, a prosecutor would have every right to charge an individual with this ‘crime.’ We would hope that the key players in the case would make the right decision and acknowledge that this is just an outdated law that should not be prosecuted.”

Freshman Katie Marrow said she thinks lawmakers definitely need to address this issue.

“I think that they should get the law taken off the books because I believe people should have a right to privacy and have the ability to be with whoever they want,” Marrow said.

Another SHSU student doesn’t think that the law matters.

“Even though the law is still included in the penal code, I don’t think it matters because it was found unconstitutional,” freshman Shealynn Vogan said. “So whether or not lawmakers leave it in there or take it out, I don’t think it really matters because it’s well-known that it is outdated.”

The unconstitutional law will continue to remain on the books until lawmakers decide it is best to remove it. Although this may be offensive to some people, Colarusso says he think it is just negligence rather than maleficence.

“I don’t think lawmakers have any certain resentment or vendetta against the LGBT community, I think this is just an outdated law that no one has particularly paid enough attention to remove it,” Colarusso said. “There are many, many other laws that are just like this one that are out of date, but that have not been removed. I think in cases like this, lawmakers hope that prosecutors and judges are just competent enough to recognize the invalidity of the law, and would thus just throw out any cases pertaining to laws of this kind.”

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