“Trans rights are human rights!” one protester yelled into a bullhorn.
“We’re here, we’re queer, we’re not going anywhere,” another chanted.
Roughly a hundred LGBTQ+ activists and advocates chanted, raised banners and made their voices heard outside the gates of the Texas State Capitol.
Dozens in opposition, meanwhile, stood nearby. One raised a sign: “Gender identity is a lie.”
Feet away, dozens of others in biker gear stood watch – one with a Confederate flag patched to his leather vest. Another man in a ballistic vest stared silently from behind the crowd with his index finger perched just above the trigger of the AR-15 style rifle hanging from his shoulder.
The juxtaposition played out on a sweltering August afternoon in the shadow of the building where the recent legislative session focused more than ever before on LGBTQ+ issues.
In 2023, Texas lawmakers filed a historic number of bills – 141 in all – impacting the LGBTQ+ community. That legislation accounted for one-fifth of all such state-level measures across the U.S. this year, according to analyses compiled by the Human Rights Campaign and Equality Texas. Cross-referencing bills through the Texas Legislature Online, KXAN relied on those advocacy groups’ statistics because the state does not readily track those numbers.
Some policies passed, including measures that would prevent certain medical treatment for transgender children, ban books mentioning LGBTQ+ topics in public schools and criminalize some performances critics worry could include drag shows.
On one side, the LGBTQ+ community has railed against these new laws seen as the government overstepping and infringing on freedoms to love, live and parent as people choose. On another side, proponents say they are working to protect children and fight for nothing less than the traditional values that underpin American society – an effort backed mostly by conservative lawmakers and activist organizations like the increasingly influential group Texas Values.
But while those debates received perhaps the most attention during the session, some legislative hearings and discussions surrounding this overarching topic referenced another controversial law aimed at criminalizing this group for decades. That statute outlaws “homosexual conduct,” and it has been in Texas’ Penal Code for 50 years. Texas is one of only a few states yet to repeal it. At least nine bills that would repeal the law were filed in 2023 – a single-session record in Texas, according to a KXAN analysis. They were not the first, nor will they be the last.
Through vast video and audio archive research, and extensive case analysis, KXAN investigators explore why the statute remains, its lasting impact and the fight over its enforceability and possible removal. We look closely at its supporters and opponents, the legal challenges standing in the way and related efforts unfolding now and expected soon.
Many of KXAN’s team of journalists working on this multi-platform project are LGBTQ+ staff members with unique, developed and inside perspectives providing nuance to our fair, rigorous and balanced reporting standards.
Sodomy has been a crime in Texas since 1860, when legislators made it illegal to engage in this “abominable and detestable crime.” Punishment was set at five to 15 years in prison, according to the law.
The law was broad and applied to any heterosexual and homosexual sodomy. It was not until more than a century later, when Texas’ Penal Code underwent a major overhaul, that the law was replaced with a new statute narrowed to specifically target gay sex.
Texas legislators toiled for years in the late 60s and early 70s to update the state’s criminal statutes. The massive effort culminated in 1973, with Senate Bill 34 by State Sen. Charles Herring, an Austin Democrat.
Carol Vance, Harris County’s district attorney at the time, was part of a group that worked on the legal revamp. The sweeping legislation was hundreds of pages in length and restructured everything in the Penal Code from violent crimes to gambling offenses.
The changes would give Texas “one of the best penal codes in the country,” Vance said at the time, according to Senate audio archives.
Tucked into the bill were four lines – Section 21.06 – making “homosexual conduct” a Class C misdemeanor. The crime was defined as engaging in “deviate sexual intercourse with another individual of the same sex.” The old sodomy law was removed.
Even then, the new statute was controversial, drawing opponents who delivered testimony, including Dennis Milam, then spokesperson of the University of Texas chapter of the National Organization for the Repeal of Sodomy Laws.
“To us, the State of Texas has no place in the bedrooms of its citizens and no right selectively harassing and discriminating against women and men whose love, affection and sexuality is their only crime,” Milam told a Senate subcommittee in 1973.
Vance countered, “We’ve tried to take into consideration the needs of everyone, and I certainly hope that this will go right through the Senate.”
Lawmakers indeed passed the bill, solidifying the new offense. That move would eventually spark a lawsuit that would reach the highest echelon of the American legal system and reform other laws across the country.
‘It allows discrimination’
Former Rep. Debra Danburg, D-Houston, was one of several lawmakers who repeatedly tried to eliminate the homosexual conduct law.
Danburg filed one of her repeal bills in 2001, laying it out before a legislative panel on criminal jurisprudence. At that point, she was a veteran lawmaker who had notched 20 years in the Texas House.
In a recent interview with KXAN, Danburg said she knew people who were being discriminated against because of the law.
“It just seemed like the right thing to do to take it off the books,” she said. “It was, on its face, unfair.”
The law is “rarely enforced in the criminal courts at all,” Danburg told the committee in 2001. But, on a “daily basis,” it allows discrimination. Any time a homosexual person has to sign paperwork and swear they do not engage in criminal conduct, the law creates an “instant dilemma,” Danburg said.
For six months, KXAN investigators researched and gathered the stories included in the “OutLaw” project. See what sparked this multi-platform project and learn about our team’s approach.
“If ever you have to make a choice of either lying on your job application – for which you can get fired – or not lying on your job application, and saying, ‘Yes, I violate Section 21.06 of the Penal Code,’ it’s a regular ongoing problem,” she added.
On top of being unjust, Danburg said, it was also being challenged in the courts, when she invited testimony from Mitchell Katine, a Houston attorney representing two men charged with homosexual conduct.
Those two men, John Lawrence and Tyron Garner, had sued the state. Their case was winding through the court system on its way to the Supreme Court, Danburg explained.
Katine told the committee he “didn’t believe it” when he first received a call about the case. He had never heard of someone being arrested and put into jail for homosexual conduct,” he told the committee in 2001.
“Many heterosexual people approach me and question me because they were not aware of this law and literally cannot believe, in the year 2001, it still exists in any state, let alone the state of Texas,” Katine said.
‘Lives on the line’
On the night of Sept. 17, 1998, Lawrence and Garner were together in the former’s east Houston apartment when police received a report alleging a “black man was going crazy in the apartment” and was armed with a gun, according to a probable cause affidavit.
Harris County Sheriff’s deputies arrived. William Lilly, the first deputy into the unit, spoke with KXAN and recounted his observations. The deputies entered looking for a man with a gun, but Lilly and the affidavit instead described two men having sex.
The deputies weren’t initially sure how to handle the situation. They hadn’t found what they were called for, but one deputy suggested they “file homosexual conduct,” Lilly said. They arrested Lawrence and Garner for the Class C misdemeanor and booked them into jail that night, according to court records. Throughout the arrest, Lilly said he had mixed feelings.
“I’m gonna be honest with you. I’m thinking to myself: ‘You know what, these are two grown adults, what they do in the privacy of their homes is their business,’” Lilly said.
The next morning, soon after their release from jail, Lawrence and Garner were connected with Katine, who agreed to take the case because it was “very unusual,” and he saw it as a way to showcase how this section of the Penal Code was really used.
“I really saw this case as an educational tool, so that people who were not in the gay community could understand and realize the stigma and discrimination that gay and lesbian people were living under,” Katine said. “This was an extreme case, but (this law) was used in employment and child custody and housing to criminalize and stigmatize.”
Katine, a young gay lawyer at the time, felt called to take the case and potentially undo damage he perceived from the Supreme Court’s 1986 decision in Bowers v. Hardwick. That case essentially said gay and lesbian people were not protected by the constitution, Katine explained, adding that the Bowers case allowed for the criminalization “of a moral disapproval of homosexuality.”
The prevailing attitudes about homosexuality in America had since shifted, making laws criminalizing it ripe for revision.
The HIV and AIDS crisis of the 1980s and 90s forced the LGBTQ+ community ”out of their hidden world.” Millions of Americans were confronted with the reality that their own friends, associates and relatives were gay, Katine said.
When Lawrence and Garner’s arrests made headlines, Katine received calls of outrage and bafflement from people across the globe about two people being “put in jail for having private consensual sex,” he said.
The willingness of Lawrence and Garner to “go all the way” with the case resulted in a landmark decision that Katine never imagined would happen, let alone get to the country’s highest court, Katine said.
Katine placed a call for assistance to the constitutional lawyers at Lambda Legal, a national firm with a specialty in advocating and defending freedoms for LGBTQ+ people.
Shelly Skeen, the current southern regional director for Lambda Legal, told KXAN the firm agreed to take the case because it saw the homosexual conduct law as fundamentally “unconstitutional.”
“As long as there was a sodomy law on the books, that meant that we were considered criminals in the eyes of the law,” Skeen told KXAN.
And being considered a criminal, Skeen added, affected all LGBTQ+ people’s ability to engage in vital parts of everyday adult life, like opening a bank account and getting housing.
Even though being gay or lesbian wasn’t illegal in itself, the criminal act was so closely associated with the status that “one stood in for the other,” said Dale Carpenter, a constitutional law professor at Southern Methodist University.
Carpenter specializes in LGBTQ+ rights and wrote a book on the Lawrence case and its impact on American law: “Flagrant Conduct: The Story of Lawrence V. Texas.”
“The law teaches lessons, and the lesson that this law taught to Texans in the late 20th century, is that homosexuals were bad,” Carpenter said. “They could be discriminated against, and it was okay to do so.”
Harris County District Attorney Charles Rosenthal fought the case on behalf of the state.
KXAN spoke with Rosenthal, but despite weeks of phone conversations with him, the former prosecutor would not agree to an interview on the record.
‘No longer valid’
In 2003, the case was taken up by the Supreme Court, where Paul W. Smith of Lambda Legal represented the plaintiffs. Smith argued that by targeting a specific set of people, Texas was violating the equal protection clause of the 14th Amendment.
“This is a statute which in addition to intruding into that area of important fundamental protections, limits its focus just to one small minority of the people of the state of Texas,” Smith told the justices. “It says that these specified forms of sexual intimacy, called deviate sexual intercourse, are illegal only for same-sex couples and not for anyone else in the state of Texas.”
Rosenthal argued the state wasn’t violating the Constitution, and the Court should be careful not to regulate an issue better left to voters.
Texas “has a right to set moral standards,” Rosenthal said. Furthermore, the Supreme Court would be disenfranchising Texans “who ought to have the right to participate in questions having to do with moral issues.”
On June 26 of that year, the Court’s decision came down. Katine remembers being at his office with TV cameras waiting at his front desk. “We ’didn’t only win, we won really big,” Katine said of the 6-3 decision. Justice Anthony Kennedy wrote “golden language,” in his opinion, as Katine described it.
“The petitioners are entitled to respect for their private lives,” said Kennedy. “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
The Supreme Court’s decision rendered sodomy laws in more than a dozen states including Texas unconstitutional and unenforceable. The Lawrence case reversed the previous Bowers decision, which had upheld a Georgia law criminalizing sodomy.
The Lawrence decision gave the LGBTQ+ community “access to all of those basic things that we all need to live: a job, a house, a bank account, a loan, an education,” said Skeen.
“It also paved the way, in part, for marriage equality,” Skeen said. “Marriage equality has, in many instances, really shaped the way that the public views LGBTQ people.”
But the decision did not remove Texas’ homosexual conduct law from the books. In 2023, it remained – with only a brief notation indicating it is unenforceable. A KXAN analysis shows Texas legislators have filed at least 55 bills to repeal it since the early 80s – unsuccessfully. Thirty-nine of those followed the Court’s ruling.
“Why else would you keep a law on the books that’s no longer valid?” Katine said. “It’s to send a message.”
On the evening of June 28, 2009, four men visited a Chicos Tacos restaurant in east El Paso. While waiting in line, two of the men “kissed briefly” and then again at their table, according to court appeal records.
The public display of affection did not sit right with one security guard who reprimanded the group.
“If you continue with your clowning around, we will throw you out of here,” the security guard allegedly said, according to court records.
The men felt discriminated against. They called 911.
“We came to eat and … a couple that’s with us – they’re two males, and they’re boyfriends, and they’re kissing, and they’re kicking us out,” one man told the operator.
When El Paso police arrived, they threatened the men with arrest. One officer cited the homosexual conduct law, saying it was illegal “for two men to kiss in public” and that he could arrest them.
The group was ordered to leave the restaurant but not arrested.
The four men sued the City of El Paso and one of the responding officers for being “treated like criminals on the basis of their sexual orientation,” according to an appeal record.
The plaintiffs also alleged El Paso’s police chief acted with “conscious indifference” to the constitutional rights of gay people by failing to train officers that the homosexual conduct law had been declared unconstitutional.
After a two-year court battle, the city agreed to settle with the men in 2012. On top of its own legal costs, the city paid the men $5,000 and issued a press release informing the public that the police department would train all its current officers on discrimination based on sexual orientation and gender identity. Going forward, new officers would receive the training as part of their curriculum, according to a settlement agreement.
Former El Paso City Councilman Steve Ortega told KXAN the incident marked a dark time in the city. There were protests outside the restaurant where the incident occurred, and the “climate was terrible” in terms of accommodating the gay community, he said.
“I’m not proud of what happened,” Ortega added. “It was a black eye to the community.”
About a month after the incident, Ortega brought a resolution to the council reaffirming the city’s commitment to “acceptance, tolerance and diversity.” It was a statement to show where the city stands, Ortega said.
In the years to follow, state lawmakers have mentioned the El Paso incident and lawsuit to underscore why the homosexual conduct law needs to be removed from the criminal code. former Rep. Jessica Farrar, D-Houston, brought the case up in 2015, in defense of her repeal legislation, House Bill 1523.
“Not only is the existence of this law the source of misinformation to law enforcement, but as in the case of El Paso, local governments may be forced to expend their limited resources due to its misuse,” Farrar told lawmakers at a hearing on the bill.
But tracking that possible misuse is difficult due to Texas’ transparency rules.
‘Wielded against me’
KXAN submitted more than three dozen public information requests to city police departments, county sheriff’s offices and municipal court clerks in Texas’ 10 most populous counties, seeking records of arrests or charges filed for homosexual conduct since 1973, when the law was created.
Several municipal courts said they only retain Class C misdemeanor records for five years, a retention period prescribed by the Texas State Library and Archives Commission.
In response to all those requests, KXAN obtained just one piece of information – from the City of San Antonio’s municipal court – indicating a person was charged with homosexual conduct in 2001 two years before the law was rendered unconstitutional.
But like the El Paso case, recent legislative testimony reveals the law has been used against other Texans – like Meaghan Bihun – following the Supreme Court ruling.
Bihun – who identifies as non-binary and intersex – spoke before the House Criminal Jurisprudence Committee in March in favor of House Bill 2055, the latest repeal bill by Rep. Venton Jones, D-Dallas.
Bihun and more than 300 other people registered in favor of the bill that day, while 10 registered against it, according to a witness list.
“I’m old enough to have this section of code wielded against me for simply existing in public with my girlfriend,” Bihun told lawmakers. “I received citations for simply walking down the street holding her hand.”
Bihun explained to KXAN that citation was issued in Williamson County two years before the Supreme Court found the law unconstitutional. Bihun didn’t have a record of the citation and, due to retention timelines, no record was available from the law enforcement agency.
As recently as 2019, Bihun said their family also had trouble with a landlord agreeing to rent a unit to them, after learning the gender of Bihun’s spouse. The landlord was concerned “because that’s illegal in Texas,” Bihun told KXAN.
Bihun said those problems, and a generally more challenging environment in Texas for LGBTQ+ people, have made them feel unsafe and pushed them to move out of the state with their family.
Lawmakers proposed several bills this year affecting LGBTQ+ people, including legislation that passed to regulate medical care for transgender children and ban certain books and performances described as “sexually oriented.”
“I was encouraged by every member of my immediate family to not sit down and discuss this,” Bihun said. “We’ve had experiences where we’ve received death threats, and we shouldn’t have to live in that kind of fear, just to speak to things that should be part of standard everyday life.”
Policies passed into law
One measure passed this year, Senate Bill 14, by Sen. Donna Campbell, R-New Braunfels, bans transgender minors from accessing puberty blocker medication, hormone therapies or surgeries. It would also revoke the license of doctors who provide that care.
The bill passed into law, despite facing opposition from LGBTQ+ groups, psychologists and physicians, like Dr. Jessica Zwiener.
In her testimony against the bill, Zwiener, a board-certified endocrinologist, told the Senate State Affairs Committee that gender affirming care is “lifesaving.”
She cited a recent study published in the Journal of the American Medical Association that found a 60% reduction in depression and 73% lower incidence of suicidality in transgender youth who were treated with puberty suppression and hormone therapy, she said.
“Transition is not experimental. It’s not unproven. It’s not unsafe,” Zwiener said to lawmakers. “Rather, this care is supported by over 30 years of clinical experience, along with evidence showing a dramatic improvement in mental health when adolescents are able to access this care in a reasonable time.”
Those favoring the legislation also included physicians. Campbell, the bill’s author, is an emergency room doctor. Bethany Rife, a Texas pediatrician, testified to the committee that the American Academy of Pediatrics has supported treating children with hormone therapy, but, in her assessment, the group’s policy statement on the issue lacks “good data” and is outdated.
Rife said childhood gender dysphoria most often resolves itself, which makes gender transition unnecessary. She also described doctors that provide gender transition therapy as “predatory.”
“The answer to this is to help them in their self-resolution with counseling and get them out of this high-risk category,” Rife said. “Instead, these doctors are helping these kids quickly commit to changing their gender with social affirmation and puberty blockers, often causing irreversible harm.”
The gender affirming care bill has been challenged in court. A Travis County judge issued a temporary injunction blocking enforcement, but the Office of the Attorney General filed an appeal.
Another bill, House Bill 900, authored by Rep. Jared Patterson, R-Frisco, was also disputed by the LGBTQ+ community – and booksellers in the state. The law is known as the READER Act and requires bookstores, book publishers and other vendors to review and rate books for “sexually relevant” or “sexually explicit” content if those books are sold to school libraries.
At a House Public Education Committee hearing, Patterson described the legislation as a “solution” that would empower parents through increased parental controls and require district transparency.
Jonathan Covey, director of policy with Texas Values, echoed Patterson at the hearing and said parents are “rightfully concerned and even sometimes angry” that children could get their hands on “pornographic materials in public school libraries.”
“This bill is truly about protecting the innocence of children and empowering our parents to decide what materials a child concerns rather than having government schools indoctrinate our kids,” Covey said.
Geoffrey Carlisle, an eighth-grade science and sex education teacher in Austin, testified against the bill, which, he said, would lead to censorship of LGBTQ+ identities.
The Texas Health and Safety Code states homosexuality is not an acceptable lifestyle to the general public, citing a reference to the homosexual conduct statute in the Texas Penal Code. Therefore, Carlisle said, “any mention of homosexuality at all in a book would allow for it to be considered patently offensive and therefore subjected to being prohibited in Texas public schools.”
Austin’s BookPeople and others sued the state over the law. A U.S. district judge blocked its enforcement, saying it is unconstitutionally vague and violates free speech. Texas is appealing the decision.
Another bill passed last session concerning LGBTQ+ issues was Senate Bill 12 authored by Sen. Bryan Hughes, R-Mineola. The legislation outlaws “sexually-oriented performances” at commercial enterprises in the presence of a person under 18.
Anyone conducting such a performance on public property that could be seen by a child may be charged with a Class A misdemeanor, punishable by up to a year in jail and a $4,000 fine.
The bill also amended the state’s Health and Safety Code to make it a civil violation for a person controlling a commercial enterprise to allow a sexually-oriented performance in the presence of someone under 18.
Although the new law doesn’t mention the word “drag,” its opponents, like Brigitte Bandit, say it could discriminate against drag shows, a form of art and a cornerstone of the LGBTQ+ community. Bandit is an Austin drag queen who was born female and performs as a feminine person.
Bandit told lawmakers the bill would discriminate against a specific group of performers: those who exhibit themselves as a different sex. A drag performance done in the presence of children, such as a story telling session, is modified to be made appropriate for that audience, Bandit said.
“None of us want to have children at a drag shows at the gay bar at 11 p.m. on a Friday night, and there are already laws present preventing that from happening,” Bandit said.
Callie Butcher, president of the Dallas LGBT Bar Association, said the legislation solves a problem that does not exist, and parents should be in charge of what their children see and do.
“The answer to this supposed issue is simple,” Butcher told the Senate State Affairs Committee. “If you don’t want your child to go to a drag show, don’t take them.”
Proponents of the bill, like Mary Elizabeth Castle, director of government relations for Texas Values, said “research has proven time and time again” that exposing children to sexualized performances could lead to “violence,” problems with intimacy and “dysfunction later on in life.” Castle did not specifically cite which research she was referencing when she made those remarks to the Senate State Affairs Committee
The law has been challenged by Bandit and several LGBTQ+ groups that sued the state, arguing the rules would threaten their livelihoods and censor their freedom of expression.
A federal judge blocked the law, ruling it unconstitutional. The permanent injunction, which came down in late September, stops the Texas Attorney General from enforcing the law. The Attorney General’s Office said it will appeal.
Those three bills were strongly backed by conservative groups like Texas Values – an advocacy organization that has been the staunchest public opponent at the Capitol of repealing the homosexual conduct law, including Jones’ most recent effort to strike the law from the books.
For more than a month, KXAN contacted Texas Values multiple times seeking an interview or statement for this report and provided the organization with the main points of KXAN’s reporting on this specific law. The group’s president, Jonathan Saenz, said they would not be commenting. A spokesperson for Texas Values said they “have other, more pressing issues, that we are focused on at this time and will pass on this opportunity.” Texas Values did agree to an interview in a related report.
Venton Jones’ desire to eliminate the homosexual conduct provision in the state’s criminal code grew from his own experiences.
As Texas’ first openly gay, Black and HIV-positive state lawmaker, Jones – a freshman in the legislature – now represents the same Dallas neighborhood where he was raised and continues to live.
Jones said he loves the area, but he also acknowledged an isolating and challenging childhood there. He was closeted, and it was tough going growing up without others like him, he said.
“It was pretty lonely,” Jones said. “It came with, you know, a level of bullying.”
But, the adversity he faced also “teaches you to be strong,” he said.
As Jones went through college, he began the process of coming out. He founded the nonprofit Southern Black Policy and Advocacy Network, with the goal of meeting the needs of his rapidly-changing community.
Jones’ legislation to remove the homosexual conduct provision from Texas law, like many similar bills in the past, drew criticism from Texas Values.
Since 1983, lawmakers have held at least 14 public hearings with witness testimony on such legislation, according to a KXAN analysis. The most consistent group against the legislation has been Texas Values, which registered or testified 17 times against eight of the bills – far more than any other group.
Texas Values seeks to influence public opinion and the legislative process in support of conservative causes through “effective education, research and issue advocacy,” with the goal of supporting “faith, family and freedom,” according to its website.
The group has a three-pronged organization to advance its missions: a 501(c)3 nonprofit called Texas Values, a 501(c)4 nonprofit called Texas Values Action and a General Political Action Committee.
The nonprofits have existed since about 2013, and they have steadily increased their revenues in that time , according to IRS 990 forms reviewed by KXAN.
While the organization openly touts its objectives and messages, it is less clear who funds its operation and where the money goes.
KXAN spoke with experts like Anthony Gutierrez, executive director of Common Cause Texas, a non-partisan organization tracking money in politics. He said that vague type of business structure is common – at least with Texas nonprofits. Many donors give to a 501(c)3 because that donation is tax deductible. Giving to a 501(c)4 is not tax deductible, but that type of organization can use those funds for more explicit political activities and lobbying, Gutierrez explained, adding there are legal but complicated, ways to move money between the organizations.
Gutierrez spoke generally on the topic, and acknowledged his own organization has both a 501(c)3 and 501(c)4 arm.
In total, Texas Values’ nonprofits brought in $10 million in revenue between 2013 and 2021, with about 85 percent of the revenue going to 501(c)3, according to publicly available IRS 990 forms.
Where exactly the organization’s money originates isn’t shown on public records.
Several Texas Values staff – including Castle – are registered lobbyists. A KXAN analysis of the group’s lobbying reports found over $23,000 spent on food, awards and gifts, but it is unclear who was lobbied since 2013.
Gutierrez said it is typical for lobbying reports not to note who was lobbied because spending under certain limits does not require lobbyists to disclose those details, which is “unfortunately, very common”.
501(c)4 organizations are sometimes referred to as “dark money” groups by watchdogs like Common Cause, because they can engage in political activities and do not have to disclose where they get money. From 2012 through 2021, Texas Values Action 501(c)4 brought in $1.6 million in revenue and had $1.26 million in expenditures, according to a KXAN analysis.
“The use of dark money is a huge concern for us” in general, Gutierrez said. “That’s something we work on all the time is trying to improve disclosure requirements so that at the very least people can know the source of the money that is buying political ads for lobbying legislators or trying to influence policy, wealth.”
Today, as social issues dominate Texas’ political agendas, Texas Values is stronger than ever – at least financially.
Aside from lobbying and political spending, Texas Values clearly defines its stance on certain politicians.
If lawmakers support conservative causes that align with Texas Values’ mission, they earn endorsements before elections and high marks on legislative scorecards available on the group’s website.
Texas Values has provided support – through donations, endorsements or high scorecard rankings – to nearly every Republican lawmaker who has sat on a committee that considered a bill to repeal the homosexual conduct law over the past eight years, according to a KXAN analysis.
Texas Values’ exact impact on the bills is unclear, though none have passed.
‘Not a lifestyle acceptable’
Texas Values doesn’t just promote its endorsements and awards on its website. The group also touted them at a legislative hearing on Jones’ bill to repeal the homosexual conduct law.
At a March hearing on Jones’ bill, Rep. Jeff Leach, R-Plano, asked Castle if Texas Values supports the law and criminalizing homosexual behavior.
“Does Texas Values have a position on whether or not an individual who engages in homosexual conduct should be classified as a criminal under Texas law?” Leached asked Castle.
Castle reminded Leach – whose office did not respond to KXAN’s multiple interview requests – that Texas Values has labeled him a “faith and family champion” with multiple perfect scorecards from her organization. She then explained that the impact of removing the homosexual conduct law from the books runs deeper than the criminal code alone.
“Every time this law is introduced, it’s not even about that. It is about the Health and Safety Code, which goes to the education parts and removing that important information for kids under the age of 18,” Castle said.
Castle was referring to the Texas Health and Safety Code’s rules for sex education, which directly cite the homosexual conduct law. Those rules say education materials relating to sex education and sexually transmitted diseases must include that “homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense,” according to the statute.
Rep. Joe Moody, D-El Paso, asked Castle if Texas Values could potentially support Jones’ bill, if the portions in the Health and Safety Code were left largely intact and would still say homosexuality is not a lifestyle acceptable to the general public.
Even with Moody’s suggestion, Castle said she wasn’t sure that solution would be “workable.”
While Jones’ bill passed unanimously out of the committee, it stalled and never reached the House floor for a vote. That leaves the law on the books, which could lead to more issues than just being misused in the future, said Carpenter, the constitutional scholar from SMU.
‘An unused whip’
The homosexual conduct law remains on the books as a “symbolic statement” of traditional values, Carpenter said.
But looking further, the U.S. Supreme Court could overrule the Lawrence decision, in the same manner as Roe v. Wade was overturned. In 1973, the Supreme Court’s Roe decision made abortion a right. In 2022, the court overturned that decision, leaving states to decide whether to allow, or outlaw, abortion.
It isn’t clear how strong the desire to reverse Lawrence v. Texas is. There is no appetite among Democrats, and mixed sentiments among Republicans. For example, U.S. Sen. Ted Cruz, R-Texas, told the Dallas Morning News last year that the homosexual conduct law should be repealed and “consenting adults should be able to do what they wish in their private sexual activity,” according to Cruz’s spokesperson. Meanwhile, the newly elected U.S. House Speaker Mike Johnson, a Louisiana Republican, previously authored opposition to the Supreme Court’s ruling in Lawrence v. Texas, saying “the state is right to discriminate between heterosexual and homosexual conduct since the latter cannot occur within the confines of marriage,” according to a 2003 column in the Shreveport Times.
If Lawrence were overturned, Texas’ homosexual conduct law would once again be available for use, Carpenter said.
“That old law – it just lays there like an unused whip,” he told KXAN. “A prosecutor could potentially pick it up again and use it for enforcement purposes or for other kinds of discriminatory actions.”
Today, Texas, Kansas and Kentucky are the only remaining states with a measure outlawing homosexual sodomy on the books. Jones and others who supported his bill expect similar legislation to be filed in next session in 2025.
“I’m pretty hopeful, but, at the end of the day, I don’t really get hopeful. I just work hard,” Jones said. “I’m gonna work hard, just like I did this last time, to be able to move this bill even further.”