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Why does the Texas criminal code still ban "homosexual conduct"?

The United States Supreme Court ruled in 2003 that a ban on "homosexual conduct" — the act of sex between members of the same sex — was unconstitutional. So why is it still on the books?

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Hey, Texplainer: Why does Texas criminal law still ban "homosexual conduct"? 

Technically, the state's ban on "homosexual conduct" is not enforceable because of a 2003 U.S. Supreme Court ruling. But a state statute banning sex between people of the same gender remains on the books.  

In 1973, Texas made homosexual conduct a criminal act. People caught in the crime could be fined up to several thousand dollars and face jail time. Three decades later, the U.S. Supreme Court struck down the law in Lawrence v. Texas — a landmark civil rights case. The ruling invalidated similar sodomy bans in 13 other states.

But the Texas ban hasn't officially been removed from the state's penal code.

Though police don't enforce the unconstitutional ban, it can still lead to some confusion. In 2011, Mother Jones cited a 2009 example when two men kissing at an El Paso restaurant were threatened with jailing. Police officers cited the "homosexual conduct" statute.

This legislative session, Democratic lawmakers are trying to repeal the language — as they have in previous sessions. A related bill is scheduled to be discussed Monday in the House Criminal Jurisprudence Committee. Such a bill has never made it out of committee, according to the Texas Observer.

Bottom line: The ban on "homosexual conduct" is unconstitutional and unenforceable. But prior attempts to strike the language from the state's criminal law have failed.

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