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

Sunday, March 27, 2011
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“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to cleanup the state’s criminal code, when the panel’s top Republican and Democrat removed a provision that would have repealed the law that criminalizes gay sex.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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