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Texas, Kansas, Montana, Oklahoma: states hold onto laws defining gay ‘conduct’ illegal

Sunday, March 27, 2011

“Homosexual conduct” is still a crime in Texas — and at least three other states — eight years after the U.S. Supreme Court decision, Lawrence v. Texas, which struck down the state’s sodomy law, and invalidated similar laws across the country.

And yet lawmakers in Texas, Kansas and Montana, have either failed, or face opposition, in removing the unconstitutional laws from their state’s criminal code.

Although the so-called sodomy laws cannot be enforced legally, civil rights advocates say they should be removed from the books because they create a climate favorable to discrimination, harassment, bullying, and hate crimes.

In Texas, State Rep. Jessica Farrar (D-Houston) has sponsored legislation to repeal the state’s sodomy law, which has been unenforceable since the 2003 Supreme Court decision. Her colleague, Rep. Garnet Coleman (D-Houston) has introduced an identical bill.

“There is archaic language in our code that is used against our citizens today,” said Farrar.

The Austin American-Statesman reports:

“By leaving it on the books, you create the potential for abuse,” said Jim Harrington, director of the Texas Civil Rights Project , which is representing two gay men who were kicked out of an El Paso restaurant in 2009 for kissing in public.

In 2003, the U.S. Supreme Court ruled that Texas could not stop people of the same sex from engaging in sexual activity. Today, the Texas Penal Code still states that it is a Class C misdemeanor to engage in “deviate sexual intercourse with another individual of the same sex” — just after a line explaining that the law is unconstitutional.

Gay rights legislation is a tough sell for Texas lawmakers. In 2005, voters overwhelmingly approved a constitutional amendment banning same-sex marriage.

Rep. Wayne Christian (R-Center), said he would be hesitant to change the law, because it “better reflects the views of a lot of citizens” as it is. Republicans hold 101 of the 150 seats in the Texas House, a super-majority that allows them to easily control legislation.

In Kansas, the House Judiciary Committee was considering legislation last week designed to cleanup the state’s criminal code, when the panel’s top Republican and Democrat removed a provision that would have repealed the law that criminalizes gay sex.

The Topeka Capital-Journal reports:

Thomas Witt, state chairman of the Kansas Equity Coalition, said the decision by Rep. Lance Kinzer (R-Olathe), and Rep. Jan Pauls (D-Hutchinson), to remove a provision repealing the law from a cleanup bill sent a harsh message to homosexual couples living in Kansas.

He said House leadership should remove Kinzer as chairman of the House Judiciary Committee and oust Pauls from her position as ranking Democrat on the panel. [...]

“Representative Pauls’ endorsement of an unconstitutional statute that’s used to threaten and discriminate against law-abiding Kansas citizens is an outrage,” Witt said.

“Jan Pauls was trusted to be a judge before becoming a state representative and should know better than to support unconstitutional laws,” said Jon Powell, chair of the Hutchinson chapter of the Kansas Equality Coalition

Both lawmakers said the repeal seemed unnecessary since the law wasn’t being enforced.

And as we reported earlier, a Montana legislative committee on March 18 killed a bill that would have decriminalized homosexual sex. The bill would have removed language from Montana Code which defines “deviate” sexual relations as sexual contact or sexual intercourse between two persons of the same sex.

Via The Montana Capitol Report:

This bill would remove the outdated language in our criminal code that makes homosexual acts a felony. This law has already been ruled unconstitutional by the Montana Supreme Court and similar laws have been ruled unconstitutional by the U.S. Supreme Court.

By all rational accounts, this bill should have been easy, since it only cleans up our criminal code to fit the current law. Unfortunately, all but one of the Republicans on this committee allowed their personal biases to overrule their respect for the rule of law and they voted to kill this bill.

During a hearing on the bill, GOP lawmakers equated homosexuality with bestiality and pedophilia.

The Montana Supreme Court struck down that state’s sodomy law in 1997, six years before the U.S. Supreme Court ruling.

The state of Oklahoma also has not yet repealed it’s homosexual conduct laws, and the state legislature has taken no action since the 2003 Supreme Court decision to remove the law from its criminal code.

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Filed under: Kansas, Montana, Oklahoma, Texas

76 more reader comments:

  1. I have this feeling that Texas isn’t a real place. It’s too much like the ‘Bogeyman of homosexuality’ to be real, so I theorize that we’re told about ‘Texas” to get us to calm down and go to bed early.

    But apparently Texas has friends.

    Posted on Sunday, March 27, 2011 at 12:55am
  2. I have this feeling that Texas isn’t a real place. It’s too much like the ‘Bogeyman of homosexuality’ to be real, so I theorize that we’re told about ‘Texas” to get us to calm down and go to bed early.

    But apparently Texas has friends.

    Posted on Sunday, March 27, 2011 at 12:55am
  3. Texas: It doesn’t matter if all 150 of your Representatives are extreme-conservatives! If it’s unconstitutional, THEN IT’S UNCONSTITUTIONAL! What part about the national government saying, “You can’t say or do that anymore!” is not getting through your thick skulls?! Same for you Kansas, Montana, and Oklahoma! Oh no, I didn’t forget you!

    Posted on Sunday, March 27, 2011 at 12:56am
  4. Texas: It doesn’t matter if all 150 of your Representatives are extreme-conservatives! If it’s unconstitutional, THEN IT’S UNCONSTITUTIONAL! What part about the national government saying, “You can’t say or do that anymore!” is not getting through your thick skulls?! Same for you Kansas, Montana, and Oklahoma! Oh no, I didn’t forget you!

    Posted on Sunday, March 27, 2011 at 12:56am
  5. The sad thing is “I” live in Texas :/

    Posted on Sunday, March 27, 2011 at 12:59am
  6. I live in Texas. It is very much a real place. I live in Houston so it’s a little better than the rest of the state but not a whole lot. You still hear people being accused of being a “faggot” from across the class. -_-;

    Posted on Sunday, March 27, 2011 at 12:59am
  7. I live in Texas. It is very much a real place. I live in Houston so it’s a little better than the rest of the state but not a whole lot. You still hear people being accused of being a “faggot” from across the class. -_-;

    Posted on Sunday, March 27, 2011 at 12:59am
  8. fuck texas, glad im in illinois. =]

    Posted on Sunday, March 27, 2011 at 1:00am
  9. It’s equally wrong! Alright, let’s say hypothetically I’m not a gay guy, and I’m a Republican (big imagination, I KNOW!) I still wouldn’t agree with having it in the States’ Constitutions! Why?? Even if I’m the most homophobic Representative there, I still realize that any law that can’t be enforced, funded, or even noted in any tangible way, isn’t a law in the first place! It’s a RESOLUTION! Look it up, oh mighty representatives! You are just trying to over empower your insecurities, and even the freaking National Government ISN’T GOING TO STAND FOR IT ANYMORE!!!

    Posted on Sunday, March 27, 2011 at 1:00am
  10. It’s equally wrong! Alright, let’s say hypothetically I’m not a gay guy, and I’m a Republican (big imagination, I KNOW!) I still wouldn’t agree with having it in the States’ Constitutions! Why?? Even if I’m the most homophobic Representative there, I still realize that any law that can’t be enforced, funded, or even noted in any tangible way, isn’t a law in the first place! It’s a RESOLUTION! Look it up, oh mighty representatives! You are just trying to over empower your insecurities, and even the freaking National Government ISN’T GOING TO STAND FOR IT ANYMORE!!!

    Posted on Sunday, March 27, 2011 at 1:00am
  11. I live and love Texas but this law makes me hate it most times. I have many gay friends that I wish could have the same rights as straights.

    Posted on Sunday, March 27, 2011 at 1:00am
  12. It’s the whole idea that state governments can have their own laws even if they conflict with national ones. That’s why they have problems with medicinal marijuana in CA.

    Posted on Sunday, March 27, 2011 at 1:03am
  13. It’s the whole idea that state governments can have their own laws even if they conflict with national ones. That’s why they have problems with medicinal marijuana in CA.

    Posted on Sunday, March 27, 2011 at 1:03am
  14. But laws passed by Congress -after- a State law automatically supercede State laws (assuming the law is within the Congress’ power to pass) It’s stated directly in the Constitution.

    Posted on Sunday, March 27, 2011 at 1:05am
  15. But laws passed by Congress -after- a State law automatically supercede State laws (assuming the law is within the Congress’ power to pass) It’s stated directly in the Constitution.

    Posted on Sunday, March 27, 2011 at 1:05am
  16. Wtf. This is no doubt going in my Gay Rights research paper! I live in Florida, and we can’t marry, or adopt. But at least we don’t have this ‘law’. It’s so stupid! It’s like saying you can’t wear the same shirt as someone!

    Posted on Sunday, March 27, 2011 at 1:05am
  17. Wtf. This is no doubt going in my Gay Rights research paper! I live in Florida, and we can’t marry, or adopt. But at least we don’t have this ‘law’. It’s so stupid! It’s like saying you can’t wear the same shirt as someone!

    Posted on Sunday, March 27, 2011 at 1:05am
  18. I live in Houston too, Elizabeth. And I agree with you!

    Posted on Sunday, March 27, 2011 at 1:06am
  19. It all comes down to it being enforced. You can make a law but unless you have someone who will carry it out it doesn’t matter.

    Posted on Sunday, March 27, 2011 at 1:07am
  20. It all comes down to it being enforced. You can make a law but unless you have someone who will carry it out it doesn’t matter.

    Posted on Sunday, March 27, 2011 at 1:07am
  21. That fact that gay conduct was ever illegal shows us what the muts we are up against came from. Explains to me why law makers hid it and vote against it too.

    Posted on Sunday, March 27, 2011 at 1:08am
  22. But as it states in the article, even if the law can’t be enforced, its existence will be cause for harassment.

    Posted on Sunday, March 27, 2011 at 1:08am
  23. But as it states in the article, even if the law can’t be enforced, its existence will be cause for harassment.

    Posted on Sunday, March 27, 2011 at 1:08am
  24. True but even if you get rid of the law the harassment will still be there unless someone is put in place to stop it. Just like with desegregation. It took a long time for the laws to actually be enforced.

    Posted on Sunday, March 27, 2011 at 1:11am
  25. Policies like this are why I feel I’m lucky to live in Canada . We have full equal rights including marriage and adoption, and discrimination based upon such is a criminal offence .

    Posted on Sunday, March 27, 2011 at 1:17am
  26. Its bs that these unconsitutional laws are still on the books even if they arent being enforced. Its amazing how by doing nothing these lawmakers seem to approve of homophobia.

    Posted on Sunday, March 27, 2011 at 1:23am
  27. So its a crime to be born different ?

    Posted on Sunday, March 27, 2011 at 1:49am
  28. Ya for living in LA, California! Can we absolve texas’ statemenship and reinstate it as a new state with different people in the power seats please!

    Posted on Sunday, March 27, 2011 at 1:59am
  29. Ya for living in LA, California! Can we absolve texas’ statemenship and reinstate it as a new state with different people in the power seats please!

    Posted on Sunday, March 27, 2011 at 1:59am
  30. Nobody’s talking about Oklahoma, so I’ll chime in. We have Sally Kern, the nutcase who claims “the homosexual agenda” is more frightening than terrorist. It doesn’t surprise me that the law is still on the books here. Yes, we’re queer and we’re here, but we don’t have a voice in Oklahoma.

    Posted on Sunday, March 27, 2011 at 2:52am
  31. Nobody’s talking about Oklahoma, so I’ll chime in. We have Sally Kern, the nutcase who claims “the homosexual agenda” is more frightening than terrorist. It doesn’t surprise me that the law is still on the books here. Yes, we’re queer and we’re here, but we don’t have a voice in Oklahoma.

    Posted on Sunday, March 27, 2011 at 2:52am
  32. so much for the land of the free.

    Posted on Sunday, March 27, 2011 at 4:15am
  33. I wish I would get arrested for being gay in Texas, I would sue the shit out of the state. I mean I don’t know why people are so interested that I give my boyfriend head!!! I mean I don’t give a shit that you go down on your wife!!!!! So stay out of my sex life and out of my religion!!!!!

    Posted on Sunday, March 27, 2011 at 5:26am
  34. I wish I would get arrested for being gay in Texas, I would sue the shit out of the state. I mean I don’t know why people are so interested that I give my boyfriend head!!! I mean I don’t give a shit that you go down on your wife!!!!! So stay out of my sex life and out of my religion!!!!!

    Posted on Sunday, March 27, 2011 at 5:26am
  35. So.
    They’re saying its sure as hell okay to have sex with your first cousin but you can’t be gay? Hmm. Somethings wrong there.

    Posted on Sunday, March 27, 2011 at 5:47am
  36. So.
    They’re saying its sure as hell okay to have sex with your first cousin but you can’t be gay? Hmm. Somethings wrong there.

    Posted on Sunday, March 27, 2011 at 5:47am
  37. I think marrying your first cousin is pretty bad…
    But i wont judge you texas.

    Posted on Sunday, March 27, 2011 at 6:07am
  38. I wonder if they consider a prostate exam prostitution.

    Posted on Sunday, March 27, 2011 at 6:24am
  39. I think aomerhing is wrong with texas and our ao called democracy. And texas still thonks it is its own damn country. New flash your apart of the united states.

    Posted on Sunday, March 27, 2011 at 6:29am
  40. SMDH, naive ignorance…this is why this country is so effed up; instead of worrying about the private lives of two consenting adults, perhaps you need to focus on issues like, ummm, I don’t know, WORLDWIDE HUNGER & FAMINE, HOMELESSNESS, VIOLENCE, YOUTH JOINING GANGS, PEDOPHILES, MURDERERS, TERRORIST PLOTS, I mean I could go on…call me crazy but these seem to be bigger threats to society don’t ya think!? :/ <<<(being HEAVILY sarcastic)

    Posted on Sunday, March 27, 2011 at 6:53am
  41. Funny as hell @ Charles…anddddd TMI dude!

    Posted on Sunday, March 27, 2011 at 6:55am
  42. I lived in Texas( Arlinargton, near Dallas), for two years, and I honestly found it really pretty accepting for me. I much prefer people who don’t don’t understand, and think its weird at first, to the people who say – you’re gay?! Oh, that’s cool… I-m totally cool with that…- then avoid me. Ever since ive moved to colorado, I’ve been getting a lot of the second situation.
    I think Texas gets way too much bad press, and it really bothers me. I loved Texas and even more, I love Texans ( and I moved there from california for a job, and thought I would hate it.)

    Not once, during the entire time I lived in Texas, did I feel like a second class citizen. Give your hatred a rest.

    Posted on Sunday, March 27, 2011 at 7:20am
  43. I lived in Texas( Arlinargton, near Dallas), for two years, and I honestly found it really pretty accepting for me. I much prefer people who don’t don’t understand, and think its weird at first, to the people who say – you’re gay?! Oh, that’s cool… I-m totally cool with that…- then avoid me. Ever since ive moved to colorado, I’ve been getting a lot of the second situation.
    I think Texas gets way too much bad press, and it really bothers me. I loved Texas and even more, I love Texans ( and I moved there from california for a job, and thought I would hate it.)

    Not once, during the entire time I lived in Texas, did I feel like a second class citizen. Give your hatred a rest.

    Posted on Sunday, March 27, 2011 at 7:20am
  44. It is not enforced. I live in Texas and have not had any problems.

    Posted on Sunday, March 27, 2011 at 7:25am
  45. What’ll I Do, When I’m Alone With Thoughts Of You… and I am blue, what’ll I do?!

    Posted on Sunday, March 27, 2011 at 8:40am
  46. that is because they all want to marry their cousins.

    Posted on Sunday, March 27, 2011 at 9:05am
  47. Wow….I’m jus glad i live in NY!!!!….Texas to me never really existed!!

    Posted on Sunday, March 27, 2011 at 10:45am
  48. I live in Texas and love it. but I feel like I’ve never ran into this kind of issue. maybe because I live in Dallas?

    Posted on Sunday, March 27, 2011 at 10:45am
  49. It’s time to change. This is why the South is sometimes thought of as old-fashioned and behind the times…

    Posted on Sunday, March 27, 2011 at 12:36pm
  50. This is so not right, are we living in the dark ages here

    Posted on Sunday, March 27, 2011 at 6:14pm
  51. Hm. I think I might travel to these states. And participate in some “homosexual conduct” :)

    Posted on Sunday, March 27, 2011 at 6:17pm
  52. wake up people gays arent going anywhere!

    Posted on Sunday, March 27, 2011 at 6:17pm
  53. Funny cause women I talked to was from Kansas and I stay in Missouri lmao!!!! I agree with Lisa this is so not right! Lol

    Posted on Sunday, March 27, 2011 at 6:18pm
  54. I live in Texas and I didn’t even know about this! D<
    I knew Texas was conservative but wow, just wow.

    Posted on Sunday, March 27, 2011 at 6:24pm
  55. Horrible!! Love is love!! What you do, and who you do it with is nobodys business but your own!!!

    Posted on Sunday, March 27, 2011 at 6:30pm
  56. I find it bizarre that those states chose to make criminals of their own citizens. Tells you how horrible their politicians are.

    Posted on Sunday, March 27, 2011 at 6:37pm
  57. Pathetic, hateful and homophobic

    Posted on Sunday, March 27, 2011 at 6:38pm
  58. holy crap thats horrible :(

    Posted on Sunday, March 27, 2011 at 6:44pm
  59. pathetic!!

    Posted on Sunday, March 27, 2011 at 6:45pm
  60. All I can say is people are idiots. I’m sick of them, and very seriously considering moving to a more Enlightened country.

    Posted on Sunday, March 27, 2011 at 6:57pm
  61. Those laws should be illigal! Fuk dat shit I’m goin to those states wit a bunch of my lesbian friends an jus fuk in da streets lmao

    Posted on Sunday, March 27, 2011 at 7:20pm
  62. they cannot enforce it, why don’t people on here actually do something about it and stop worrying on what cannot be enforced.

    Posted on Sunday, March 27, 2011 at 7:34pm
  63. CHANGE!

    Posted on Sunday, March 27, 2011 at 7:42pm
  64. and it’s the 21st century……(?!!!)

    Posted on Sunday, March 27, 2011 at 7:51pm
  65. I don’t know about everyone else, but this surprised me.

    http://theequalitychronicle.blogspot.com/2011/03/homosexuality-illegal-in-us.html

    Posted on Sunday, March 27, 2011 at 7:57pm
  66. :(( Lets get the cowboys on board!!

    Posted on Sunday, March 27, 2011 at 8:17pm
  67. malarkey!

    Posted on Sunday, March 27, 2011 at 8:34pm
  68. I thought that the Supreme Court ruled these laws to be unconstitutional?

    Posted on Sunday, March 27, 2011 at 9:44pm
  69. @Daisy they did, however the states mentioned in this article refuse to take the sodomy laws off the books, even though they are unable to enforce those laws. It’s narrow minded bigotry and hatred at it’s finest.

    Posted on Sunday, March 27, 2011 at 9:50pm
  70. Malarkey, indeed, Junior! As a criminal defense and civil rights lawyer, for me the biggest societal problem with keeping an unconstitutional law on the books is that is fosters disrespect for the law as a whole.

    When the government can pick and choose which laws to enforce, citizens eventually begin to pick and choose which laws to follow. At the very least, a legitimate government rules by consent of the people and is beholden to the same legal system. In other words, democracy requires the rule of law.

    ~M

    Posted on Sunday, March 27, 2011 at 10:53pm
  71. SORRY BUT RELATIONSHIPS CAN WAIT LESBIAN COUPLE MURDERED N THEIR HOME N NY N MEMORY OF JACKIE N CRYSTAL 3/22/11

    Posted on Sunday, March 27, 2011 at 11:59pm
  72. We are not free until we are ALL free AMERICA

    Posted on Tuesday, March 29, 2011 at 4:37am
  73. There’s testimony by Diane Sands on the Montana Bill- sometimes hard to watch- but well worth it:

    http://dgsma.wordpress.com/2011/03/30/progress-but-still-disappointing/

    Posted on Wednesday, March 30, 2011 at 9:20am
  74. I’m glad you’re in illinois too !!!!

    Posted on Thursday, March 31, 2011 at 3:22pm
  75. God bless “THE REPUBLIC OF TEXAS”

    Posted on Friday, April 1, 2011 at 1:21am
  76. If you don’t like it, LEAVE. AMF

    Posted on Friday, April 1, 2011 at 1:25am