Mother Jones is the latest to weigh in on legislation aimed at excising the archaic anti-sodomy statute, about which the Texas Independent first reported in January. The Austin American-Statesman took note of the issue in late March. Even though lawmakers have balked at removing the anti-”homosexual conduct” language from the Penal Code, the Texas Department of State Health Services has already responded to the court ruling by removing mention of the Penal Code statute from its sexual education program.

In addition to the archaic anti-sodomy statute — which made it a Class C Misdemeanor if a person “engages in deviate sexual intercourse with another individual of the same sex,” punishable by a maximum fine of $500″ — two other portions of the Penal Code addressing sexual offenses are still on the books despite being ruled unconstitutional.

The two related sections of the law (Penal Code Sections 43.21 and 43.23), which a federal appeals court declared unconstitutional in the 2008 case Reliable Consultants, Inc. v. Earle, attempted to define “obscene” and made it a state jail felony to “wholesale promote any obscene material or obscene device,” or to intend to. (A person was assumed to intend to wholesale promote those materials or devices if he/she had six or more of those items — the same standard applied to child pornography.)

Without delving into details, the definition of ‘obscene’ includes terms such as, “prurient interest in sex,” “discernibly turgid” and “to affront current community standards of decency.”

Additionally, six sections of the Business & Commerce Code — together creating a so-called “pole tax” of $5 per customer on strip clubs, to be paid into a fund for sexual assault victims — were struck down in 2009 by a lower court in Combs v. Texas Entertainment Association, Inc. The Texas Supreme Court heard arguments in March 2010, but an opinion has not been issued.

Other unconstitutional sections of Texas law aren’t quite so titillating. According to information provided by the Texas Legislative Reference Library, there are about two-dozen in all — appearing in the Alcoholic Beverage Code, Civil Practice & Remedies Code, Family Code and Government Code. None of the relevant court rulings on the constitutionality of the sections are older than 2003.

One of the duties of the Texas Legislative Council, which helps lawmakers draft and research bills, is to sweep the state code for unconstitutional provisions, and generally to help clean up and update sections of the law. In January, a staffer told the Texas Independent that TLC tackles the law one code at a time, and it can take years to cycle through all of the sections.

See below for a list of unconstitutional statutes in Texas law:

Texas unconstitutional statutes
Texas unconstitutional statutes –

“Because the individual mandate is unconstitutional and not severable, the entire act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications,” Vinson wrote in his opinion.

The case is the second in which a judge has ruled the mandate to be unconstitutional. Several other judges have dismissed challenges to the law, citing no evidence that the law is unconstitutional.

Pawlenty, who joined the suit in his capacity as governor but did not have the authority to make Minnesota a party to the suit, praised the decision.

“Today’s court ruling correctly affirms that President Obama and the Democratic-controlled Congress’s health care takeover violates the U.S. Constitution,” he said in a statement. “An individual health-care mandate is an unconstitutional power grab by the Federal government and drags our health care system in the wrong direction. This ruling is a big victory for states’ rights, the U.S. Constitution and market-based health care reform. I was proud to join this federal lawsuit challenging Obamacare’s individual mandate and am optimistic that higher courts will uphold the ruling.”

Among the 26 states that joined the lawsuit are Minnesota’s neighbors Iowa, North Dakota, South Dakota and Wisconsin. Wisconsin joined the lawsuit several weeks ago after a Republican governor and attorney general were sworn in. Iowa joined at the request of its new Republican governor and has the unique distinction of both supporting and opposing health care reform. Its Democratic attorney general filed papers in support of the law’s constitutionality but didn’t block the governor from filing the lawsuit challenging its constitutionality.

North Dakota and South Dakota have been a party to the lawsuit since April 2010.

The case will be appealed in the 11th circuit appeals court.

According to the representatives crafting the legislation, that’s exactly the point:

“If that bill passes, we will be sued immediately. That’s the purpose of the bill,” said Texas state Rep. Leo Berman. “The ACLU, La Raza, the Justice Department — someone will sue us for the bill.”

The next step in his desired outcome is a legal victory. “That lawsuit will go all the way to the U.S. Supreme Court, where some judge is going to read the background and say there are no Supreme Court rulings affirming the 14th Amendment’s current interpretation,” he said.

Elise Foley has the story.

It seems unlikely the bill will go anywhere, given that legal scholars say it blatantly violates the 14th Amendment. But Pearce, who has been discussing anti-birthright citizenship since June, has moved forward anyway and plans to introduce it in January during the next legislative session. Kobach shot down the Arizona Republic’s request for details on the bill: “We aren’t announcing anything yet, as the drafting is not complete,” he said in an email.

A move to end automatic citizenship may have some support on the national level, where numerous Republicans have come out against “birth tourism” and “anchor babies.” But a repeal of the 14th Amendment that grants native-born citizenship would need far more support to succeed: Constitutional amendments must be approved by two-thirds of both houses of Congress and at least 38 states.

Pearce’s bill would instead remove citizenship at the state level, which legal experts say is directly in conflict with the Constitution. (Kobach, interestingly, is a constitutional law professor.) Last time Justice Department officials felt Arizona was preempting their authority on immigration matters, they sued the state to stop it. If the state were to pass Pearce and Kobach’s bill, it seems likely another lawsuit would result.

Bolton ruled against a few parts of the lawsuit:

For example, she did not find standing for two New Mexico residents who felt that their driver’s licenses would deny them a constitutional right to travel because that state does not verify immigration status in issuing licenses.

She rejected arguments by the ACLU that forbidding illegal immigrants from soliciting work violated the First Amendment and that the language of the law was unconstitutionally vague.

The Friendly House and ACLU lawsuit was one of seven filed against SB 1070. Two of the lawsuits, Escobar v. Brewer and Frisancho v. Brewer, have been dismissed, while two others have yet to go before Bolton. An appeals court will hear the Justice Department case against SB 1070 in November.

McConnell and Graham referenced an article in the Washington Post last month on a Chinese business that charges $14,750 to help women have their babies in the U.S. so the children will be citizens:

“What’s wrong with looking into this? The Washington Post did,” McConnell (R-KY) told reporters at a breakfast hosted by the Christian Science Monitor. [...]

Pushed to explain what outcome he expects from hearings, McConnell said he wasn’t sure what “remedy” would be presented. Still, it should be done, he said, adding : “Why don’t we take a look at it?”

Many other Republicans have come out against women coming to the U.S. for the express purpose of having citizen children, whether because they will then train the children to be terrorists or simply to exploit U.S. laws.

Most immigrants rights groups contend that the “anchor baby” phenomenon does not exist — and at least one advocate of tough immigration enforcement agrees. In a post at National Review last week, Center for Immigration Studies’ Mark Krikorian argued against making changes to the 14th Amendment based on claims of birth tourism:

I don’t like illegals having U.S.-citizen kids any more than anyone else, but there’s no evidence suggesting that this “drop and leave” stuff is true — anything’s possible, I suppose, but it’s just an assertion at this point. My own sense is that most illegal alien women who have kids here (accounting for nearly 10 percent of all children born in the U.S. each year) didn’t come for that purpose; they came for jobs or to join relatives, and one thing led to another, birds-and-bees style, and they had kids. There are no doubt some people who dash across the border illegally to have kids, but they just can’t amount to a large share of the problem. Nor does the problem of “birth tourism” require a change in the Constitution — we just need to permit (and require) our consular officers to reject visa applications from pregnant women, inviting them to re-apply once they’ve given birth in their own countries.

Of course, hearings are unlikely to happen — as reported yesterday, Sen. Russ Feingold (D-Wis.) said the Constitution Subcommittee would not hold hearings on the issue.

There’s a growing chorus, led by Senate Minority Leader Mitch McConnell (R-Ky.), saying that Congress should hold hearings on removing the Constitutional provision that grants automatic citizenship to anyone born in America. Talking Points Memo reports that when McCain and Coburn were asked whether they support that push, McCain said he supports “the idea of having hearings,” but brushed off questions about whether he would support an amendment. Coburn was more open, telling TPM: “I’m not sure I’m going to embrace it but might.”

Sen. Jon Kyl (R-Ariz.) also recently voiced support for hearings, while Sen. Lindsey Graham (R-S.C.) said he plans to introduce a constitutional amendment to change the 14th Amendment.

Latino advocacy groups have pledged to fight this effort. Janet Murguía, president of National Council of La Raza, called the effort by mainstream Republicans “extremely troubling” during a conference call today:

We fully intend to push back on these efforts. I think it’s an affront to the Constitution. …To see this kind of a challenge should give us all pause to know that if we thought the court case in Arizona had resolved anything, we were very mistaken. …We are very concerned that people will let their guard down and believe that we won on that issue. But the fight is not over.

The Hill had more details from an interview with McConnell:

McConnell stopped short of echoing Graham’s call for repeal of the amendment.

“I think we ought to take a look at it — hold hearings, listen to the experts on it,” McConnell said. “I haven’t made a final decision about it, but that’s something that we clearly need to look at. Regardless of how you feel about the various aspects of immigration reform, I don’t think anybody thinks that’s something they’re comfortable with.”

Sen. Jon Kyl (R-Ariz.) also recently said he supports a review.

It’s unclear whether these statements are more than political posturing. As I wrote last week, constitutional amendments require far more support than Graham’s effort is likely to find — two-thirds of Congress and three-quarters of state legislatures. It seems more likely the senators hope to earn political points for appearing to do something tough to combat illegal immigration, even if they fail to achieve any sort of real change.

“People come here to have babies,” he said. “They come here to drop a child. It’s called “drop and leave.” To have a child in America, they cross the border, they go to the emergency room, have a child, and that child’s automatically an American citizen. That shouldn’t be the case. That attracts people here for all the wrong reasons.”

Plans to remove automatic citizenship for people born in the U.S. are floated from time to time, mostly to combat what Graham called the “drop and leave” phenomenon: immigrants having babies who can later help them obtain citizenship (see also: “anchor babies“). The 14th Amendment grants citizenship to anyone born in the U.S., but since children must be 21 to petition for their parents to come to the U.S., immigrant’s rights groups contest the idea that “anchor babies” exist at all.

That hasn’t stopped lawmakers: 92 House members signed on to a 2009 bill that would restrict citizenship to children born to at least one parent who is a citizen, legal permanent resident or military member.

Still, even if these ideas became law — opposition from the left and the difficulty of amending the Constitution virtually assure they would not — the effort would probably be shot down by the Supreme Court. The Court ruled twice in favor of citizenship for people born in the U.S. regardless of their parents’ status.