Mark Whittington Mark Whittington
A law banning “homosexual conduct” is still on the books in Texas, even though the law was declared unconstitutional by the Supreme Court eight years ago and therefore cannot be enforced. Efforts to expunge the law are getting nowhere, however.
The law states that it is a Class C misdemeanor punishable by a $500 fine for people to engage in “deviate sexual intercourse with another individual of the same sex.” In the landmark case of Lawrence v Texas, the Supreme Court found the anti-sodomy statute to be unconstitutional, mainly due to the equal protection clause as the law did not apply to different sex couples as well as the right to privacy.
Even though all so called anti-sodomy laws are unconstitutional and thus unenforceable thanks to the Supreme Court decision, the Texas law remains on the books. The reason is either to express moral disapproval, according to some, or as an excuse to harass gay people, according to others.
According to the Austin American Statesman, as late as 2009, a gay couple was booted out of an El Paso restaurant allegedly for publicly kissing, with the unconstitutional law being cited by the police. Thus the argument for expunging the law has some validity.
The main argument for expunging the law is the question of whether it is the business of the state to pass laws based solely on moral disapproval. Acceptance of gays and rights for gays have become so widespread that the number of people who still have moral qualms are in a distinct minority. The Washington Post reports that a new poll shows that a slim majority of Americans now favor same sex marriage, an issue that has proven contentious, even in blue state California.
If it is the province of the state to pass laws based solely on moral judgment, then the question arises where does it end? Where is the line drawn? Are state governments able to pass laws against — say — fornication and adultery? Certainly the latter practice has more social ramifications that homosexual behavior, especially when it involves the break-up of families. Yet such a law would catch within its net millions of Americans, including former President Bill Clinton and former House Speaker Newt Gingrich.
Of course with huge Republican majorities and hence a large number of social conservatives in the Texas state legislature, repeal of the Texas anti-sodomy law has a very dim prospect at best of occurring any time soon. But it has become, at best, one of those quaint, silly anachronisms that people like to laugh about. That alone dilutes any moral authority the unconstitutional law has.