US Supreme Court Takes on Sodomy: SO DO MY neighbors, SO DO MY friends, SO DO
MY lovers
The Good Times,
February 13, 2003
1205 Pacific Ave., Suite 301, Santa Cruz, CA 95060
Fax: 831-458-1295
Email: letterstoeditor@gdtimes.com
By Patrick Letellier
The language is quaint, in a 17th-century kind of way, like a line out of
Arthur Miller’s witch-burning tale, "The Crucible," or Nathaniel
Hawthorne’s adulterous "Scarlet Letter": "Any person who is
guilty of the detestable and abominable crime against nature, committed with
mankind or with a beast, shall be guilty of a felony punishable by
imprisonment in the State Penitentiary."
The passage, unfortunately, is not fiction, it’s state law. Taken from
criminal statute 21-886, called a "Crime Against Nature," it’s the
text of Oklahoma’s sodomy law.
Sodomy laws in other states also read like a step back in time. Mississippi’s
has a Biblical flair, prohibiting "unnatural intercourse." South
Carolina uses English boarding school slang, outlawing "buggery."
And good ol’ Texas cuts to the heart of the matter, banning what it calls
"Homosexual Conduct."
The out-of-date language is no coincidence. American sodomy laws are legal
stowaways that came over with English colonial settlers and trace their roots
back almost 500 years to a ban on sodomy issued by King Henry VIII in 1533.
Borrowing from old English law, the thirteen original American colonies all
banned sodomy under punishment of death, and as subsequent states joined the
union each adopted it’s own sodomy law.
Over the last three centuries the laws evolved from a religious to a more
secular doctrine, and from a death sentence to a prison sentence. But from its
earliest days to the present, the United States has banned certain sexual
practices between consenting adults, namely oral and anal sex. Sodomy was
illegal in every state until the early 1960’s when the laws began to be
revised and, in some cases, repealed.
Today nine states—Alabama, Florida, Idaho, Louisiana, Mississippi, North
Carolina, South Carolina, Virginia and Utah—and Puerto Rico ban sodomy
between any two adults, while four others—Kansas, Missouri, Oklahoma and
Texas—specifically outlaw homosexual sodomy.
Despite their antiquated language, these laws are serious business. In
2003, if you violate Oklahoma’s sodomy law, for instance, you can be charged
with a felony and spend the next 20 years in prison.
But that may soon change. The U.S. Supreme Court is set to hear arguments
for and against sodomy laws in late March. The ruling to follow could, in one
stroke, overturn these laws and break down age-old barriers in the struggle
for gay civil rights.
What’s at stake in this case, however, is much more than just repealing
laws against certain sexual practices. Sodomy laws are also used as a way to
justify discrimination against lesbians and gay men in a variety of settings.
For example:
- The re-appointment of a judge in Virginia was challenged last fall by a
state legislator because of Virginia’s sodomy law. Judge Verbena Askew
is a lesbian and Virginia’s first African-American female circuit judge.
Of 60 judges in the state up for re-appointment, Askew was the only one
challenged. Republican Robert McDonnell cited "certain homosexual
conduct that is in violation of the law," as a reason to prohibit
Askew’s re-appointment, arguing that Virginia’s sodomy law should
disqualify gay men and lesbians from serving as judges. In a January
hearing criticized for it’s racist and homophobic overtones, Republican
legislators voted Askew off the bench.
- A gay father, David Weigand, was denied custody of his 13-year old son
because of Mississippi’s sodomy law. The boy was living with his mother
and her new husband, who had been convicted of severely beating the mother
in front of the boy. During one incident the boy called 9-1-1 because his
stepfather had threatened to kill him and his mother. The Mississippi
State Supreme Court acknowledged that the biological father would provide
a better and safer home for the boy, but they refused to grant him custody
because, a judge ruled, "This court refuses to condone, endorse,
sanction, or tolerate homosexual activity. To do so would be to turn a
blind judicial eye to the [sodomy] statute."
- A child welfare worker in Texas, Rebecca Bledsoe, sued the state’s
foster care agency to prevent foster children from being placed in gay
homes because, as she claimed in her grievance, "homosexual conduct
is against the law in Texas." Though Bledsoe lost her suit, she
inspired Texas lawmakers to propose legislation banning gay people from
becoming foster parents.
- An 18-year-old Kansas man, Matthew Limon, was sentenced to 17 years in
prison in 2000 after being convicted of sodomy for having consensual oral
sex with a boy just shy of 15. If Limon or his partner had been female,
Limon would have been charged under a different law for having sex with a
minor and, if sentenced to the maximum penalty, he would have spent 15
months in jail. But because the two are both male, Limon was charged under
the (much more severe) sodomy statute. He will be in prison until 2016,
when he turns 36.
Sodomy laws seem patently unconstitutional, especially those, like in
Kansas, that single out gay people for more severe punishments. But because
the Supreme Court has upheld these laws in the past, there is no assurance
they will be struck down.
The case coming before the Court involves two Houston men, John Lawrence,
55, and Tyrone Garner, 31, who were arrested when police entered Lawrence’s
home, responding to a report by a neighbor of "an armed man going
crazy." Instead of a gunman, police found Lawrence and Garner engaged in
anal sex.
The two were arrested, charged with violating Texas’ sodomy law, and
jailed for 24-hours. They were eventually convicted, fined, and are now
considered sex-offenders in several states. As such, they are restricted from
numerous professions in Texas, including from becoming physicians, bus drivers
or interior designers. (How ironic is that: a law against "Homosexual
Conduct" bars gay men from becoming interior designers?)
Lawrence and Garner appealed their case, and a Court of Appeals panel
overturned their conviction, ruling the Homosexual Conduct law
unconstitutional.
But then the full Court of Appeals (rather than just a panel) opted to
weigh in on the case. Nine months later, in a move that surprised many legal
experts, the full court overturned the earlier ruling and reinstated Lawrence
and Garner’s sodomy conviction. In the name of "preserving public
morality," the court declared the Homosexual Conduct law constitutional
after all.
The next step, of course, is Washington, D.C., leaving the Supreme Court to
sort out the mess. Next month the justices will have the opportunity to bring
US law out of the middle-ages, keep the police out of people’s bedrooms, and
repeal laws that wreck havoc on gay and lesbian lives nationwide. Let’s hope
they rise to the occasion.
- Patrick Letellier teaches Gay, Lesbian, Bisexual and Transgender
Politics and Culture at UC Santa Cruz. He can be reached at PatrickGL@aol.com.
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