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In 2003, the U.S. Supreme Court found Texas’ ban on homosexual conduct to be unconstitutional in Lawrence v. Texas. More than 20 years later, the Legislature took its first steps to remove that prohibition from the books.
On Friday, the Texas House voted 59-56 to approve House Bill 1738, which would remove from state statute the unenforceable 1973 law that bans “deviate sexual intercourse with another individual of the same sex.” The bill passed on a preliminary vote the day before with 72 votes in support and 55 against.
Friday’s vote is the furthest the repeal bill has made it despite years of advocacy around the issue. It now goes to the Senate, where it’s likely to get stuck in the deluge of work left to be done before the legislative session ends June 2. But Rep. Venton Jones, a Dallas Democrat and one of the first Black gay members of the Texas House said approval among peers in his chamber is still incredibly meaningful.
“Working on this bill has been a one step at a time process, for so long,” Jones, the bill author, said. “I am standing on the shoulders of people who have carried this bill before me, and that’s where I get my strength.”
The first efforts to repeal this law date back to around the time Jones was born in 1984, he said, meaning this fight has spanned his whole life. As a gay man, knowing this law was on the books, even unenforceable, was a reminder of the state’s long-held position of discrimination against people like him.
Speaking on the House floor Thursday, Jones said he wasn’t asking lawmakers to vote on whether they agreed with the Lawrence decision.
“Instead, I’m asking you to vote on a law that strengthens the fundamental civil liberties and individual freedoms that all Texans deserve,” he said. “I’m asking you to vote for a law that upholds the principles that Texans should have the freedom and ability to make their own private decisions without unwarranted government interference.”
The bill attracted an unlikely alliance of some of the chamber’s most liberal and most conservative voices. Rep. Brian Harrison, a Midlothian Republican and rabble-rouser who has spent most of the session accusing fellow House members of being insufficiently conservative, signed on as co-author.
“Criminalizing homosexuality is not the role of government, and I support repealing it,” he said in a statement. He pointed to support for repeal from conservatives like U.S. Sen. Ted Cruz and Supreme Court Justice Clarence Thomas, adding that he “will continue consistently fighting for limited government and individual liberty.“
Harrison pointed out Thursday that he and Jones frequently disagree, but he was in support of the bill because it reduces government.
“This might actually be the first bill we’ve brought to the floor that removes the law off of our books,” Harrison said.
Taking an unenforceable law off the books is, in many ways, a symbolic gesture. Because of the Supreme Court’s ruling, a prosecutor cannot bring criminal charges under this law. But the thing about “zombie laws” is they sometimes have a habit of rising from the grave.
When the Supreme Court overturned Roe v. Wade in 2022, Attorney General Ken Paxton took Texas’ old abortion statute, which had been on the books but unenforced for almost 50 years, dusted it off and declared it good law.
The question of whether he can do that remains unresolved by the courts, leading to widespread confusion and competing litigation. While there are no cases before the Supreme Court that would overturn Lawrence, the abortion ruling made removing old laws from the books a more urgent conversation, Jones said.
“It was already past time to do this, and now even more so,” he said.
First round of TribFest speakers announced! Pulitzer Prize-winning columnist Maureen Dowd; U.S. Rep. Tony Gonzales, R-San Antonio; Fort Worth Mayor Mattie Parker; U.S. Sen. Adam Schiff, D-California; and U.S. Rep. Jasmine Crockett, D-Dallas are taking the stage Nov. 13–15 in Austin. Get your tickets today!
