Legislation to repeal a Colorado law prohibiting adultery narrowly failed in a House committee Friday amid arguments that lawmakers would be sending the message that fooling around is OK.

Under decades-old Colorado law, adultery is illegal, although there is no penalty attached to it.

Senate Bill 244 would have repealed that law as well as another that bans “promoting sexual immorality” by renting a room to unmarried people who have sex.

Anyone found guilty of “promoting sexual immorality” can receive up to a year in jail, a fine of up to $1,000, or both.

Rep. Daniel Kagan, D-Cherry Hills Village, the House sponsor of the bill, told members of the House Health and Environment Committee it was wrong for people to be prosecuted based on their marital status. He also said that whether people are cheating on their spouses is just not the government’s business.

Spouses could be legally separated or simply have an open marriage that allows for other sexual partners, he said.

“I think it’s not for us to question that,” Kagan said.

Legal scholars such as Jonathan Turley, a constitutional law professor at George Washington University, believe a 2003 U.S. Supreme Court decision striking down a Texas sodomy law renders adultery laws unconstitutional. He said about two dozen states still have such laws on their books.

“It’s quite disappointing, if not embarrassing, for Colorado to affirmatively retain these types of laws,” Turley said. “These laws harken back to an earlier period, where a majority of citizens claimed the right to impose their values and morals on their neighbors.

“The notion of a government policing immorality runs against the grain of our constitutional system. That is more often associated with countries like Iran, where morality police roam the streets,” he said.

While some Republicans have questioned whether repealing the prohibition on renting rooms for sex would allow someone to run a brothel, Kagan said there already are pandering laws in Colorado that ban the running of brothels. He said the “promoting sexual immorality” statute is rarely used, with only 20 prosecutions in the state over the past three years.

But Jessica Haverkate, director of Colorado Family Action, a political arm of Focus on the Family, said even though prosecutions may be rare, removing the language would be condoning irresponsible behavior.

“Colorado Family Action does not believe that as a state, we should encourage the moral decay of our society, no matter how archaic the laws may be and appear to some,” Haverkate said.

The bill had passed the Democratic-controlled Senate on a 25-9 vote, picking up four Republican votes in favor.

But the measure failed Friday on a 6-7 vote in the House Health and Environment Committee, with five Democrats and one Republican voting in favor, and six Republicans and one Democrat voting against.

Rep. John Kefalas, D-Fort Collins, the lone Democratic vote against the bill, said he “didn’t want to get involved in people’s bedrooms” but also did not want to condone adultery. He said that might seem contradictory.

“I just know I don’t support adultery,” Kefalas said, adding that he did not understand why the law needed to be repealed.

Sen. Pat Steadman, D-Denver, who originated the bill, said he was disappointed. Steadman said he was just trying to get rid of an archaic law.

He couldn’t resist a dig at what he saw as the legislation’s moralizing opponents.

“The bill’s been put to bed,” Steadman said, “hopefully with someone it’s married to.”