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From left: Texas Reps. Dade Phelan, Ann Johnson, and Venton Jones Jr.
The law has been unenforceable since 2003, but it remains on the books. More votes are needed to repeal it.
The Texas House of Representatives took a preliminary vote Thursday in favor of repealing the state’s anti-sodomy law, which has been unenforceable since a U.S. Supreme Court decision in a case out of Texas in 2003.
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The repeal bill, House Bill 1738, must be approved by the House once again before the Texas Senate votes. It’s unclear when the next House vote will be, and the Senate’s companion bill has not received a committee hearing.
Thursday’s House vote was 72-55, The Dallas Morning News reports. This marks the farthest a repeal bill has progressed.
The Texas anti-sodomy law, along with any others still existing in the nation, was struck down by the U.S. Supreme Court in Lawrence v. Texas in 2003. However, the state still has its law against “homosexual conduct” on the books, and it could become unenforceable if the high court ever overturns Lawrence, something conservative Justice Clarence Thomas said he’d like to see after the fall of Roe v. Wade in 2022. That would take a case getting to the court.
An unusual coalition of Texas legislators got behind the repeal, Texas Monthly reports. The bill’s sponsors and cosponsors consist of three Democrats — Venton Jones Jr., Joe Moody, and Ann Johnson — and two Republicans, Brian Harrison and Dade Phelan. Harrison’s mission has included “rolling back LGBTQ rights,” according to Texas Monthly,with specific efforts to ban drag performances at public colleges and universities and remove gender studies from them.
However, in supporting the repeal, he issued a statement saying, “Criminalizing homosexuality is not the role of government, and I support repealing it.” He added, “I will continue consistently fighting for limited government and individual liberty.” His reasoning for his opposition to drag and gender studies at public institutions of higher education is that these schools are taxpayer-funded.
Harrison also once “bragged about stealing a book on nonmedical gender transition from a [University of Texas] library,” Texas Monthly notes, adding that it’s unclear how this action would save tax dollars.
Jones, a gay man who is the first openly HIV-positive lawmaker in Texas, spoke Thursday in favor of repeal. “I’m not asking you to vote based on whether or not you agree with the Lawrence v. Texas ruling,” said Jones, who also the vice chair of the House’s LGBTQ Caucus, as quoted by the Morning News. “Instead, I’m asking you to vote on a law that strengthens the fundamental civil liberties and individual freedoms that all Texans deserve.”
Just three members of the public testified in person about the bill, with Jonathan Covey, director of policy for Texas Values, being the only one opposed. “Some laws don’t need to be enforceable to serve a purpose,” he said, according to the Morning News. “They are declarative and persuasive, and that’s what this bill does for those who read about it or know about it. It warns that this conduct is not acceptable.”
Moody asked him, “Is it the position of your organization that homosexuals should be viewed as criminals? Because that’s the only reason to keep this statute on the books.”
“The position of our organization is that we don’t want to pull something out that’s going to make it seem like that homosexuality is more acceptable,” Covey responded.
Some other far-right figures have spoken in favor of repeal, including Republican U.S. Sen. Ted Cruz of Texas. Justice Thomas even called the anti-sodomy law “uncommonly silly,” but he said its fate should be up to legislators, not the courts, and he questioned the Supreme Court's basis for striking it down. However, Texas Attorney General Ken Paxton has said he’d be "willing and able" to defend the sodomy ban if needed. Paxton is challenging Texas’s other U.S. senator,John Cornyn, in next year’s Republican primary races, as he considers Cornyn insufficiently conservative.
