These Texas Laws Are Unconstitutional… For Now

Did you know that Texas Law still prohibits and makes it possible to be ARRESTED for actions that the U.S. Supreme Court has already ruled is completely legal? It sounds scary and trust me, it is. But as long as the Supreme Court doesn't overturn it's decision, everything is all good. Or is it? In this video we'll discuss what happens to laws that are still in Texas's black letter law and what can happen in the event that black letter law is made legal once again.

00:00 – Texas Laws Still On Books
00:34 – Don’t Be Gay
01:25 – Flag Burning
02:15 – “Obscene Device” Sales Ban
03:26 – The Evisceration of Roe v. Wade
04:08 – What You Need to Understand

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You can be arrested in Texas right now for laws still on the books, even though the United States Supreme Court has already ruled is completely legal.

And here’s the part that might concern you:

Those laws have not been repealed. They haven’t been removed.

These laws are STILL on the books.

This means if the courts change their mind…those laws can come back—overnight.
And that’s not hypothetical.

It already happened.

I’m Matthew Harris, a Board-Certified Attorney in Texas. I’m going to show you three real Texas laws that still exist today—even though courts have ruled them unconstitutional—and then I’m going to show you why that could directly affect you.

DON’T BE GAY

Texas Penal Code Section 21.06 still says that it is a crime for two people of the same sex to engage in deviate sexual conduct.

That’s not historical. That’s current black-letter law. There have been efforts to repeal this law, even as recently as 2023, but those efforts failed and this law remains on the books.

How big of a crime is this? It’s a Class C Misdemeanor. The same as a speeding ticket.

But here’s the controlling case:

Lawrence v. Texas, 539 U.S. 558 (2003).

In 2003, the United States Supreme Court held that this law violates the Due Process Clause of the 14th Amendment.

In plain terms, the Court held that the government cannot criminalize private, consensual conduct between adults.

So here’s the contrast. The statute says it’s illegal. The Constitution says it’s not.

And when those conflict—the Constitution wins.

So as of today, this law is still written…but completely unenforceable.

FLAG BURNING

Texas also has a law that makes it a crime damage, deface, mutilate, or burn the American flag, as well as the Texas flag.

How serious is this crime? Well, the punishment includes up to 1 year in jail and a $2,000 fine—the highest non-felony punishment.

That leads us to Texas v. Johnson, 491 U.S. 397 (1989).

In 1989, the U.S. Supreme Court ruled that flag burning is protected speech under the First Amendment.

Now think about that for a second.

Most people assume offensive conduct can be banned. But the Court said the exact opposite.

The more offensive the speech…the more protection it gets.

So again, here’s your contrast:

What people think the law should be…versus what the Constitution actually allows.

And once again:

The statute may exist in form…but it has no legal force.

“OBSCENE DEVICE” SALES BAN

Now here’s one most people don’t even know exists.

Texas law actually prohibits the sale, advertisement, or even lending, of what it calls “obscene devices.” What’s an obscene device? Hmm. What’s a family friendly way to say this? Let’s go with adult toy, intimacy aid, or marital device.

And FYI, the law actually says that a person who possesses six or more “obscene devices” is presumed to have the intent to sell them.

That statute was challenged in Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008).

In 2008, the Federal Fifth Circuit held that the law violates the constitutional right to privacy.

Same principle as Lawrence.

The government does not get to regulate private, intimate decisions between consenting adults.

However, since this case was not appealed to the U.S. Supreme Court, this precedent isn’t binding on Texas state courts, though it is binding on federal courts. So, this law could technically still be enforced, even though it rarely is.

Now up to this point, you might be thinking:

“Okay… so what? These laws are dead. They don’t matter.”

That assumption is exactly where people get caught off guard because the next example proves the opposite.

THE EVISCERATION OF ROE V. WADE

Texas had anti-abortion laws on the books for a hundred years that criminalized elective abortions—abortions that weren’t necessary to protect the life of the mother.

Those laws were struck down in 1973 with the U.S. Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973).

For nearly fifty years after...

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