Several laws on the books in Texas classify homosexual conduct as a criminal offense. For example, there’s a section of the state’s health and safety code that says “homosexual conduct is not an acceptable lifestyle and is a criminal offense.” The state’s family code says marriage licenses can’t be granted to same-sex couples. Texas penal code even makes homosexual conduct a Class C misdemeanor.
Johnson hopes to change all of this and more with several bills he’s filed ahead of the upcoming legislative session.
He filed Senate Joint Resolution 15, which would repeal language in the state constitution that defines marriage as a union between a man and a woman. If passed, the resolution would be in voters’ hands in the November 2023 election. This is essentially asking voters to repeal the ban on same-sex marriage they approved in 2005.
“Attitudes have shifted – evolved, you might say – dramatically in the past 20 years,” Johnson said. Because of this, he thinks a majority of voters, if asked, “would repeal this unfortunate mistake of a discriminatory provision in Texas law.”
Then, there’s senate bills 81 and 82, also filed by Johnson. These bills would change Texas marriage and parenting laws to be gender-neutral. They would also repeal a portion of the state’s penal code that criminalizes same-sex intercourse. Language in the state’s health and safety code calling homosexuality an unacceptable lifestyle and a criminal offense would also be removed if these bills are passed.
State representatives and senators have tried time and again over the years to remove this language from Texas law, but have yet to succeed. This time around, Johnson is not too hopeful.
Johnson doesn’t think it's probable that either senate bills 81 or 82 will pass. This is because “Republican legislators don’t stand to gain much with base voters by bringing it up,” Johnson said. “Passage really requires a reconciliation of the idea of limited government with the practice of limited government. That’s something that eventually – perhaps this session – will be recognized as essential to running a limited, respectful government.”
“Attitudes have shifted – evolved, you might say – dramatically in the past 20 years." – Sen. Nathan Johnson
Some of the anti-LBGTQ laws in Texas have been rendered unenforceable by Supreme Court decisions. In 2003, for example, the Supreme Court ruled in Lawrence v. Texas that the portion of the state’s penal code criminalizing same-sex intercourse violated the due process clause of the 14th Amendment. But, the recent overturning of Roe v. Wade, the ruling that made abortion a constitutional right, has some wondering how long decisions like these will stand.
The decision this year kicked the abortion question back to the states, many of which had laws in place to ban it. When this happened, people worried this could set a precedent for other rights to be determined by the states.
Before the Supreme Court overturned Roe v. Wade, a draft majority opinion on the landmark case written by Justice Samuel Alito was leaked and obtained by publications like Politico. In it, Alito argued that what he called unenumerated rights, those protected by but not explicitly spelled out by the Constitution, should be strongly rooted in U.S. history and tradition.
So, how do landmark decisions from just the last two decades, like Lawrence v. Texas or Obergefell v. Hodges, which legalized gay marriage, stack up against Alito’s expectations that rights must be strongly rooted in U.S. history and tradition? It’s hard to say, and that’s what some are concerned about.
After the Supreme Court opinion draft was leaked, Jim Obergefell, the lead plaintiff in Obergefell v. Hodges, spoke to NPR about its implications. “My concern in this leaked decision, and why I'm worried about marriage equality is the language in this decision, which says 'unenumerated rights,'" he told NPR.
“This leaked decision says, well, if those unenumerated rights will continue as what we consider fundamental rights, then they have to be based in our nation's history and tradition,” Obergefell said. “That's a very dangerous thing, because marriage equality is only seven years old, not even seven years old. That is not a long history. It's certainly not the tradition of our nation.”