The Ghost of an Outlawed Act:

It sounds like something from another century, and in truth, it is. But in Texas, a law that once criminalized private, consensual intimacy between adults is still officially part of the Penal Code.

Even though the U.S. Supreme Court struck it down more than twenty years ago, Texas has never erased it from its books. That means if the federal ruling were ever reversed, the old statute could spring back into force, instantly turning private behavior into a state crime once again.

A Brief History of Texas’s Sodomy Law

For over a century, Texas’s criminal code explicitly outlawed “sodomy” — sometimes referred to as “the infamous crime against nature.” Early versions of the statute (such as Article 524 of the 1895 Penal Code) carried penalties of up to fifteen years in prison for acts that happened entirely in private between consenting adults.

In 1973, the Legislature modernized the Penal Code. The word “sodomy” was dropped and replaced with a new term: “deviate sexual intercourse.” Under Section 21.06, only same-sex intimacy was illegal. In other words, the act itself was not the crime, who you did it with was.

It was a law written to police not conduct, but identity.

Lawrence v. Texas (2003): The Federal Safeguard

That discriminatory statute finally met its match in Lawrence v. Texas (2003). The Supreme Court struck down Section 21.06 as unconstitutional, ruling that the Due Process Clause of the Fourteenth Amendment protects the right of adults to engage in private, consensual intimacy without government intrusion.

Justice Anthony Kennedy’s majority opinion was clear:

“Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

The decision invalidated sodomy laws across the nation but it didn’t erase them from state codes.

Why the Law Still Matters

Texas’s law — Penal Code § 21.06, “Homosexual Conduct” — remains printed in the books, word for word. It’s legally unenforceable under Lawrence, but it’s never been repealed.

This might seem harmless, but it’s not. Federal court decisions can be narrowed or overturned. If Lawrence were ever reversed, Texas’s law would automatically become enforceable again, no legislative action required.

And while dormant, it still casts a shadow. Courts and agencies have cited it in custody disputes, moral-character assessments, and professional licensing cases, even though it’s unconstitutional. Its very presence signals that some relationships remain officially condemned by the state.

A “Zombie” Law and a Missed Opportunity to Bury It

In 2025, the Texas House of Representatives took a step toward fixing this. House Bill 1738 was introduced and passed to formally repeal Section 21.06.

But after clearing the House, the bill stalled in the Senate. It was never scheduled for a floor vote and quietly expired at the end of the legislative session.

That means, despite bipartisan recognition that the law is obsolete and unenforceable, Texas has yet to take the simple, symbolic, and legally prudent step of removing it.

Why Repeal Still Matters

Because precedent isn’t permanent.
Lawrence v. Texas is federal case law and not a constitutional amendment. A future Supreme Court could weaken or overturn it. Repeal would ensure that Texas’s laws can’t automatically revert to criminalizing private relationships.
Because the government has no place in the bedroom.
What consenting adults do in private is not a matter for police, prosecutors, or politicians. The role of government is to protect liberty, not to dictate morality.
Because leaving it there legitimizes prejudice.
Even unenforceable, the law communicates that certain citizens are inherently suspect — that their intimacy remains a “crime” in waiting.

A Matter of Principle and Prudence

Repealing Section 21.06 isn’t about making a political statement. It’s about cleaning up an outdated, unconstitutional statute that should never have survived this long.
The longer it stays, the louder it says that Texas is content to leave discrimination in its law books, a standing invitation for history to repeat itself.

Freedom doesn’t survive by accident. It survives because people choose to defend it, even when the threat feels remote.

Texas should take that stand now before the federal protection that keeps this law in check becomes just another chapter in history.