Lawrence Ruling’s Limits
Two courts use narrow interpretations to uphold sex
laws
Gay
City News, February 24, 2005
By Arthur S. Leonard
Two more courts have used narrow interpretations of
Lawrence v. Texas to avoid invalidating sex-phobic state or local laws.
On February 11, a federal district court in Arizona
rejected a constitutional challenge to the closing of a Phoenix gay sex club,
and on February 15, the Court of Appeals of North Carolina reversed the
dismissal of a charge of soliciting a “crime against nature” brought
against a female prostitute who offered to perform oral sex on male
plainclothes police officers.
The Phoenix case concerned Flex, which U.S. District
Judge David G. Campbell called “a gay men’s social club,” and had sexual
activity going on both in private rooms and in public areas. Flex operated on
a “membership system,” through which patrons could join on a daily,
six-month or annual basis. Daily memberships were the most popular.
The city shut down Flex after the City Council passed a
statute prohibiting “the operation of a business for purposes of providing
the opportunity to engage in or view live sex acts.” The owners filed a
federal lawsuit, claiming that the closure violated rights of privacy and
liberty protected by the federal constitution, and relying primarily on the
Supreme Court’s 2003 decision in Lawrence v. Texas, which held that
criminalizing private gay sex between consenting adults violated the 14th
Amendment’s liberty guarantee. Flex’s owners contended that had standing
to sue representing the privacy and liberty interests of their members.
Campbell was not buying any of this. First, he found that
Flex was not the kind of genuine “membership organization” that could file
suit on behalf of its members, since membership was based solely on presenting
identification and paying a fee for purposes of sexual behavior, rather any
broader political, artistic, or commercial purpose.
On the chance that the court of appeals might reject his
conclusion about Flex’s standing to represent its members, Campbell
proceeded to analyze the liberty and privacy claim. On this point, he applied
a narrow understanding of privacy that pre-dates Lawrence, relying
particularly on a 1973 Supreme Court decision that held that an Atlanta
theater exhibiting obscene movies to consenting adults who paid admission was
not a “private place,” and could be closed down on obscenity grounds.
Pointing to the Supreme Court’s statement in Lawrence that the sexual acts
found to be protected did not involve public activity, Campbell concluded that
the city could make it a crime to operate a business for the purpose of
facilitating “public sex.”
A Pittsburgh federal judge just weeks earlier took a
broader view of Lawrence, in striking down a federal obscenity law, finding
that the 2003 Supreme Court ruling raised constitutional issues about
moralistic legislation and embraced a broad, protective view of consensual,
adult sexuality where the unconsenting public was excluded. The Pittsburgh
ruling suggests that the 1973 Atlanta theater decision is no longer a relevant
precedent.
The city could have made the argument that closing the
sex club was motivated by public health concerns, and that might have carried
the day, but that was not the argument advanced in this case.
In the North Carolina case, the police arrested Teresa
Pope and charged her with four counts of solicitation of a crime against
nature and one count of prostitution. She pled guilty to the prostitution
charge, but moved to dismiss the crime against nature charge, arguing that the
statute is unconstitutional in light of Lawrence. Catawba County Superior
Court Judge Robert P. Johnston, straightforwardly applying Lawrence, held that
the statute was unconstitutional and dismissed those charges, but the state
appealed.
The crime against nature statute was definitively
interpreted in a 1965 North Carolina Supreme Court ruling to mean “sexual
intercourse contrary to the order of nature. It includes acts with animals and
acts between human per anum and per os,” or in English, using the anus or
the mouth. Writing for the Court of Appeals, Judge Robert C. Hunter embraced a
narrow view of the Lawrence decision, noting that the majority opinion stated
that the protected sexual behavior “does not involve public conduct or
prostitution.” Accordingly, he found that the State of North Carolina may
properly criminalize the solicitation of a sexual act it deems a crime against
nature.
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