The Post-Revolution Period, 1776-1873
The 1804 Organic Act creating the Louisiana Territory1
stated that all laws then in force in Louisiana would remain so.2
Since it had been a French colony and France had no sodomy law, that meant
sodomy would remain legal in Louisiana. An identical provision was created
for the remainder of the original Louisiana Purchase, a huge expanse of
land in the United States.3
The first criminal code of Louisiana was enacted in 1805 and contained
a sodomy provision with the common-law definition and a mandatory penalty
of life imprisonment at hard labor.4
In 1824, a proposed criminal code revision was published by attorney
Edward Livingston.5 In his
"Introductory Title," Livingston explained what he thought
should be the guiding principles behind penal law. Only those acts
"as are injurious to the state, to societies permitted by the laws,
or to individuals" should be outlawed.6
Those actions that "may be sufficiently repressed by private
suit" should not be criminalized.7 The
law "should never command more than it can enforce." Whenever
"a penal law cannot be carried into execution, it should be
repealed."8 Religion never should
"form the subject of a penal code."9
With these principles in mind, Livingston’s code was written. It made no
reference to sodomy, and its provision on "disorderly houses"
would outlaw only "public" prostitution.10
Unfortunately both for civil liberties and for history, the Louisiana
legislature did not choose to follow Livingston’s advice.
A new code of law in 187011 included a
provision requiring all criminal offenses to be construed according to the
common-law of England.12 This guaranteed
that no prosecutions could be had under the sodomy law for anything but
anal sex.
Period Summary: Louisiana missed an historic opportunity in
1824 when Edward Livingston published a model penal code for the state
and the legislature did not adopt it. Livingston, although not
specifically discussing sodomy, did not recommend criminalizing it.
The legislature instead retained the law adopted two decades earlier
with a common-law definition and compulsory life sentence. The Code of
1870, by requiring that criminal laws be construed according to the
common law of England, prohibited prosecution for oral sex.
The Victorian Morality Period, 1873-1948
In 1876, in the first reported sodomy case in the state, State v.
Gruso,13 the Louisiana Supreme Court
unanimously overturned a conviction and life sentence because of the
admission of hearsay evidence into the defendant’s trial.14
In State v. Williams,15 from
1882, the Louisiana Supreme Court rejected the claim that the term
"abominable and detestable crime against nature" was too vague.
It merely was a "euphemism" by which
the law describes pecatum illud horribile, [and] does not,
in our opinion, leave its meaning doubtful or obscure.16
[Emphasis added].
Thus, one had to know Latin to understand why the term was not vague.
The Court answered a vagueness claim with an even greater vagueness.
In 1893, a New Orleans newspaper published a scandalous cover photo of
two women embracing, with the headline: "Good God! The Crimes of
Sodom and Gomorrah Discounted."17 The
accompanying story discussed sexual relations between women.
Possibly in reaction to this sensational story, in 1896, Louisiana
amended its sodomy law.18 The penalty was
reduced to 2-10 years, but the hard labor provision remained.19
The law was reworded to include "the detestable and abominable crime
against nature committed with mankind or beast with the sectual [sic]
organs, or with the mouth[.]"20
The first reported case under this law was State v. Vicknair,21
from 1900. This case challenged the applicability of the new sodomy law to
fellatio. The Louisiana Supreme Court made it clear that, even had the law
not been amended, it would have expanded the crime against nature law to
cover fellatio, despite the command of the Code of 1870 that all laws be
based on common-law definitions. Why, in the common-law courts,
the use of the mouth should not have been considered as much
against nature as though the act were committed per anum is
incomprehensible.22
Vicknair’s information charged him with "sucking with the
mouth,"23 which makes sense, since
there is no other part of the body with which one can suck. Justice Frank
Monroe, writing for the Court, reprinted some fascinating dialogue that
passed between the defendant and the father of the alleged victim. Another
witness asked the victim’s father why he was so upset with the defendant
and the father answered that Vicknair "s____d the ____ of my son Ned
until he has lost his mind." Vicknair denied this and Ned’s father
answered:
‘You deny that you have put my boy in the condition in which he
is, when you have s____d my son John, Jules, ___ [the prosecuting
witness in this case], and ____?’ to which the accused answered, ‘As
to those three, I don’t say no. I did it; but I swear on my honor I
have not done it to Ned.’24
The trial court found the above exchange to be a confession of Vicknair’s
guilt to the act with Ned, despite his denial of it in the statement, and
the Supreme Court sustained the ruling. Vicknair also claimed that proof
of emission was required in order to convict, but the Supreme Court noted
that it no was longer required under the common law. It also upheld the
trial court’s inference of emission from the fact that
the accused s____d his sexual organ during about three minutes’
time, and there was no evidence that the act had been interrupted
before completion.25
The Court also upheld the trial court’s allowing the prosecution even
though complaint was not made for a full year after the act.26
In 1910, in State v. Thibodeaux,27
the Louisiana Supreme Court unanimously upheld a sodomy conviction, ruling
that "crime against nature" and "sodomy" were
synonymous terms. The defendant had tried to compel the trial court to
direct the state to elect between the terms for prosecution.28
In State v. Long,29 from 1913,
the Louisiana Supreme Court again sustained a conviction for fellatio
under the 1896 law.30
In 1914, in State v. Murry,31 the
Louisiana Supreme Court again unanimously upheld a fellatio conviction
under this law. Murry had been informed against by an antique charge that
his act of fellatio was "not to be named among Christians, to the
great displeasure of almighty God."32
The Court decided that the law included
the act called ‘fellatio,’ and perhaps that other perversion
called ‘cunnilingus’, committed with the mouth and the female
sexual organ.33
The issue of forfeiture of bail was the subject of the next sodomy
case, State v. Young,34 from 1918.
Young had been released on bail pending trial on a sodomy charge, but had
forfeited it when he didn’t appear. He moved to overturn the forfeiture
when he claimed that he had been absent from the parish when the criminal
term began and thought it was to begin later. He surrendered during the
current term of the trial court, and the Supreme Court decided that he
should not have been subjected to forfeiture.35
In the 1918 case of State v. Robinson,36
the Louisiana Supreme Court ruled that the state did not recognize
common-law crimes.
A comprehensive criminal code revision in 194237
changed the sodomy law. The maximum penalty was reduced from 10 to five
years and a fine of up to $2,000 was added. The 2-year minimum remained
and the hard labor provision was made optional.38
Emission was declared unnecessary to prove the crime, and the law was made
clear that the gender of either party was irrelevant.39
A law review article of the same year discussing this new code40
was especially critical of several provisions of it, including the sodomy
law.41 Unfortunately, the author stated
that "space does not permit their consideration," so the exact
criticism was not voiced.42
Period Summary: Although it is not certain that there is a
link, three years after a sensational newspaper article on Lesbian
sex, Louisiana rewrote its sodomy law to outlaw oral sex. The law
later was interpreted as outlawing fellatio and "perhaps"
outlawing cunnilingus as well. Another revision to the law during
World War II specifically outlawed heterosexual sodomy as well.
Another missed opportunity for the state occurred that same year,
1942, when a law journal critically reviewed that new criminal code.
There were several features of the code that were felt to be
deficient, the sodomy provision one of them. However, the author did
not discuss his objections and the possibility of a pre-Kinsey
critique of such laws never occurred.
The Kinsey Period, 1948-1986
In the curious 1957 case of State v. Cavanaugh,43
the Louisiana Supreme Court initially voted unanimously to uphold the
sodomy conviction of a man whose attorney pleaded with the jury not to
send him to the penitentiary. Louisiana law required all charges to the
jury to be made in writing, and the trial judge, answering the defense
attorney, gave an oral instruction to the jury regarding the proper
roles for the different players in the courtroom, including the statement
that they had no right to acquit a defendant simply because of the
severity of the penalty that he faced.44
The Supreme Court decided that the statement actually was not a
"charge" to the jury, and did not need to be in writing.45
On rehearing, the Court, by a 4-3 vote, reversed itself, and decided that
the statement was a "charge" within the meaning of state
law, thus overturning Cavanaugh’s conviction.46
In 1959, in State v. Kelly et al.,47
the Louisiana Supreme Court upheld a sodomy conviction even though one
witness violated a court order and discussed the case with another
witness. The Court felt that this was a harmless error.48
Louisiana revised its sodomy law in a pioneering way in 1962.49
It enacted a separate law outlawing "aggravated crime against
nature" which would be triggered by an act of force, through the
victim’s inability to consent, or with a partner under the age of 17.50
The penalty was set at a maximum of 15 years, but the felony provisions
for the remaining crime against nature law, now presumably limited to
consensual acts, remained.51
In 1964, in State v. Bonanno,52
the Louisiana Supreme Court unanimously rejected Bonanno’s contention
that the term "crime against nature" was unconstitutionally
vague and overbroad. The Court believed that the term was not only
well-understood, but covered
any and all carnal copulation or sexual joining and coition that is
devious [sic] and abnormal because it is contrary to the
natural traits and/or instincts intended by nature, and therefore does
not conform to the order ordained by nature.53
Bonanno had received a sentence of three years in prison at hard labor
for a consensual act of sodomy.54
In 1966, in State v. Marcell,55
the Louisiana Supreme Court unanimously upheld a conviction for attempted
sodomy even though the trial court permitted testimony of a witness not
connected with the case. Although the Court felt that the admission wasn’t
correct, it also felt that it didn’t prejudice the case.56
One of only four reported cases in the United States dealing with consensual
sexual relations between women was the subject of the next Louisiana case.
In 1966, in State v. Young et al.,57
the Louisiana Supreme Court unanimously held that the sodomy law covered
cunnilingus between women. Mary Young and Dawn DeBlanc were prostitutes
who sometimes "gave a show" for their customers, one of whom, in
this case, was an undercover police officer.58
The Court also allowed the admission into the trial of nude photographs of
the defendants and allegedly obscene comic books found in their
possession.59
In 1974, Louisiana adopted a new constitution that included a privacy
amendment reading:
Every person shall be secure in his person, property,
communications, houses, papers, and effects against unreasonable
searches, seizures, or invasions of privacy. No warrant shall issue
without probable cause supported by oath or affirmation, and
particularly describing the place to be searched, the persons or
things to be seized, and the lawful purpose or reason for the search.
Any person adversely affected by a search or seizure conducted in
violation of this Section shall have standing to raise its illegality
in the appropriate court.60
This last sentence is nonsense, since it doesn’t guarantee any
suppression of illegally obtained evidence, merely the right to try to
suppress it. The wording of the section also only prohibits
"unreasonable" invasions of privacy.
The Louisiana Supreme Court decided the case of State v. Lindsey61
in early 1975. A trial court had dismissed a consensual sodomy information
against Lindsey, agreeing that the crime against nature law was
unconstitutionally vague and overbroad. By a vote of 4-3, the high court
reversed that ruling. Conceding that the words "unnatural carnal
copulation" might be both archaic and unrealistic in today’s
society, the Court nevertheless stated that
statutes commonly retain archaic phrases and terms because they
have acquired accepted legal meaning.62
Justice John Dixon dissented without opinion.63
Justice Pascal Calogero issued a one-sentence dissent that the law in
question "is unconstitutionally vague and indefinite."64
Justice Mack Barham was the third dissenter. He felt that the law was both
vague and a violation of the right of privacy.65
In another 1975 decision, State v. Bluain,66
the constitutionality of the Louisiana aggravated sodomy law was
upheld by a 5-2 vote. The two dissenters wrote separate, brief dissents.
One, a lower court judge sitting by designation, argued that both
the sodomy and aggravated sodomy laws were unconstitutional,67
and the other, Justice Pascal Calogero ignored the law at issue in the
case and again argued that the consensual sodomy law was
"unconstitutionally vague and indefinite."68
The Louisiana legislature passed a new sodomy law as part of a general
sex law revision less than a month after this decision.69
It enacted a unique statute covering "homosexual rape."70
The new crime could be committed only anally on a male, although the
wording did not specify that the perpetrator could not be a female.71
"Heterosexual rape" was an act against a female, either
vaginally or anally, and again without specification that a female could
not be a perpetrator.72
"Aggravated" rape, either heterosexual or homosexual, was to be
punished by death,73 although two years
later the U.S. Supreme Court struck down the death penalty for rape.74
The sodomy law was amended to exclude forcible anal sex from its
provisions, moving them to the "homosexual rape" law. Presumably
this made the sodomy law limited only to consensual activity, but the
maximum of five years in prison and a $2,000 fine was not changed.
However, the minimum penalty of two years was eliminated.75
Language was inserted stating that the act could be committed with someone
"of the same sex or opposite sex[.]"76
In the case of State v. McCoy,77
from 1976, the Louisiana Supreme Court, dealing with a case of
non-consensual sodomy, nevertheless stated that the law covering
consensual acts was constitutional, based solely on the U.S. Supreme Court’s
Doe decision of earlier the same year.78
Also in 1976, in the case of State v. Duhon et al.,79
the Louisiana Supreme Court unanimously upheld the conviction and 2½-year
sentence of two prisoners for an act of consensual sodomy in their cell.80
In the 1978 case of State v. Frentz,81
a bare 4-3 majority of the Louisiana Supreme Court overturned an
aggravated sodomy conviction. Defendant Frentz was convicted of aggravated
sodomy because his consensual relations were with a 15-year-old male. The
majority found that the state’s introduction of testimony of others who
engaged in similar activity, solely to prove that Frentz was "a
homosexual," was prejudicial error.82
In 1982, the sodomy law was amended again.83
Once more showing its creativity and desire for uniqueness, Louisiana
added to the definition of consensual sodomy the
solicitation by a human being of another with the intent to engage
in any unnatural carnal copulation for compensation.84
Thus, a mere solicitation for compensation could lead to a felony
conviction and felony criminal record the same as a completed act of
sodomy.
In 1984, in State v. Mancini,85
an appellate court unanimously overturned an "obscenity"
conviction. Donald Mancini, in a locked booth at a "peep show"
rather boldly had unzipped an on-duty vice squad officer’s pants
and exposed his penis. Both the trial court and appellate court agreed
that, in such a private place, Mancini could not be convicted, because he
had not exposed his own genitals.86 The
Louisiana Supreme Court, by a vote of 6-1, refused to review the decision.87
Also in 1984, an appellate court voted 3-0 to overturn a conviction in
the case of State v. Pruitt.88
Pruitt had solicited a female undercover police officer for oral sex and
was convicted under the expanded 1982 law that included solicitation for
compensation. Pruitt had sought to have expert testimony introduced at his
trial that oral sex between heterosexuals was not unnatural. Judge William
Byrnes, writing for the majority, noted that
all previously reported cases dealing with this crime involved homosexual
encounters. Thus any statement in prior cases which purported to
include heterosexual oral sex in the definition of unnatural carnal
copulation would be dicta and not controlling in this case.89
[Emphasis is the court’s].
In "fairness" to Pruitt, he should be allowed to introduce
the testimony he sought.90 Byrnes
apparently overlooked the clear wording of the sodomy law that included
the words "opposite sex." Chief Judge William Redmann concurred
in the reversal only in part, because he felt that the state had not
proven that Pruitt’s solicitation was for compensation. He believed
that, under the law, the compensation had to be solicited by the
prostitute in order to constitute a violation.91
Pruitt got his new trial, but again was convicted, the jurors apparently
just as horrified at heterosexual oral sex as that between people of the
same sex. In 1986, his case returned to the Court of Appeals. In Pruitt
II,92 the conviction was upheld
unanimously. Pruitt had complained that the trial judge permitted
questioning of prospective jurors by the prosecutor as to "sexual
preferences and prejudices," but would not permit further questioning
by the defense because the defense did not raise an objection.93
The Court also said that hostile questioning of the expert witness as to
acts such as bestiality, necrophilia, pedophilia, and sado-masochism and
their "naturalness" was to determine credibility of the witness.94
The Court concluded that this was not "unduly" inflammatory to
the jury.95 After sustaining the
conviction, the Court refused to consider
the question of whether the legislature may constitutionally
prohibit oral copulation in a heterosexual relationship when not
solicited for compensation, or whether such conduct is unnatural.96
An appeal to the Louisiana Supreme Court was unsuccessful when it voted
4-3 to refuse to hear Pruitt’s case.97
Meanwhile, in 1984, in State v. Williams,98
an appellate court voted 2-1 to sustain a conviction under the sodomy law
for the solicitation of a male undercover police officer by another male.
Because Williams was "a multiple offender," he received a
sentence of four years at hard labor.99
Williams, after being arrested, asked the arresting officer not to place
him in the general jail population "because he was [G]ay."100
This apparently was used as corroborating evidence, although the opinion
does not make any reference to this statement’s significance. The
"multiple" offender reference was due to one previous guilty
plea to the same offense.101 In dissent,
Chief Judge William Redmann believed that the law was unconstitutional for
two reasons. First, the vagueness of the wording made it unclear what was
illegal,102 and the penalty was
unconstitutional as disproportionate to the crime. He noted that
prostitution was a misdemeanor, but solicitation for sodomy for
compensation was a felony, thus being "cruel and unusual
punishment" due to the law’s "disproportionateness and
arbitrariness."103
Also in 1984, an appellate court unanimously sustained another sodomy
conviction based on solicitation for compensation in the case of State
v. Simmons.104 In this case, the
undercover vice squad officer solicited had been "wired" for
sound and several other vice squad officers to whom the solicited officer
drove the defendant had the entire conversation on tape. The court
rejected an entrapment defense.105
A law enacted in 1985106 prohibited the
"promotion" of "obscene devices." Such devices
included "an artificial penis or artificial vagina" primarily
used for "stimulation of human genital organs." One would
"promote" such devices if he or she would "manufacture,
issue, sell, give, provide, lend, mail, deliver, transfer, transmit,
distribute, circulate, disseminate, present, or exhibit" them.107
This lengthy prohibition outlawed giving such things away or selling them,
but neither purchasing nor using them.
In the 1985 case of State v. Woljar,108
the Louisiana Supreme Court voted 6-1 to uphold the constitutionality of
that part of the sodomy law including solicitation for compensation. The
basis for the constitutionality was only that Woljar had not cited any
case law saying that solicitation could not be considered a completed act.109
Chief Justice John Dixon was the lone dissenter. His one-sentence dissent:
"‘Unnatural carnal copulation’ is a vague, ambiguous and
undefined crime."110
In 1986, in State v. Berthelot,111
an appellate court ruled unanimously that masturbation of another person
did not constitute a violation of the law.112
Period Summary: Louisiana strongly followed the McCarthy
view of sex during this era. Convictions were upheld by courts the
vast majority of times and the statute received several revisions to
it. The specific reference to heterosexual sodomy remained, and mere
solicitation of sodomy for compensation was added as part of the
definition of a completed act.
The Post-Hardwick Period, 1986-Present
A major constitutional challenge was the subject of the 1987 case of State
v. Neal et al.113 The Louisiana
Supreme Court voted 7-0 to reverse a trial court and uphold the law,
specifically as it applied to the solicitation for compensation. First,
the Court decided that the law was not vague.114
Second, the Court refused to use the overbreadth doctrine to invalidate
the law because of its potential to chill the sexual activities of married
and unmarried consenting adults because the law was
aimed at solicitations of sexual acts for compensation that as a
practical matter may be detected efficiently only through the use of
police decoys in public places.115
A free speech argument also was rejected with the circular reasoning
that the solicitation was constitutionally criminalized because it was the
solicitation of criminal activity.116 A
broad privacy argument also was rejected, based on the U.S. Supreme Court’s
Hardwick decision, although the Court read that decision as
covering heterosexual activity as well.117
Discriminatory enforcement also was rejected.118
In 1987, an appellate court, deciding State v. Gamble,119
stretched the Louisiana law to new limits. David Gamble was arrested in an
adult bookstore by an undercover police officer who saw Gamble stick his
finger through a hole in a bookstore wall, and then saw him place his
mouth at the hole, seeing Gamble’s moustache.120
The court unanimously found this sufficient to sustain a conviction for an
attempt to commit sodomy, even though Gamble never touched the officer,
was not near him, and did not speak to him. Any "rational trier of
fact" could view this as an attempt to commit the act.121
In the 1987 case of State v. Ryans,122
an appellate court unanimously upheld the more severe penalty for
solicitation for sodomy, as opposed to solicitation for prostitution.
Judge Philip Ciaccio noted that the penalties for crimes were set by the
legislature to "reflect the degree of offensiveness with which the
conduct is regarded" by society.123
Ciaccio noted that prostitution "presumably" involved
"natural carnal copulation" and that only such copulation for
compensation was a crime in Louisiana. On the other hand,
"unnatural" copulation was a crime, with or without
compensation.124
Louisiana enacted a sex offender registration law125
in 1992. The law included both violent sex offenses and consensual sodomy
as well.126 It required not only
registration and notice of change of address of each offender, but also a
photograph and fingerprints to be provided to the sheriff. Failure to
register received a one year and/or $1,000 fine as penalty. Subsequent
violations would lead to a maximum of three years in prison without
parole, probation, or suspension of sentence.
The law received a setback in the 1993 case of State v. Payne.127
Payne was convicted of child molestation and challenged both his sentence
and registration requirement. An appellate court upheld his sentence, but
found that the registration law could not be applied to Payne since his
crimes were committed prior to the law’s enactment. Thus, to prevent
being an ex post facto law that violates for the federal and state
constitutions, it could be applied only proactively.128
In 1994, in State v. Baxley,129
the Louisiana Supreme Court reversed and remanded a trial court’s
finding of unconstitutionality on the part of the Louisiana sodomy law.
Justice Jack Crozier Watson, speaking for a 6-1 majority, said that Baxley
had no standing to challenge the portion of the law that concerned actual
sexual activity since he was arrested under the portion dealing with
solicitation for compensation. One liberal aspect of the decision is that
the court held that mere solicitation, without an offer of compensation,
does not constitute an attempt to commit the crime against nature.130
In dissent, Chief Justice Pascal Calogero, the Court’s most consistent
opponent of the sodomy law, said that few
areas of personal autonomy are more private than sexual intimacy
between consenting adults. Accordingly, the state must demonstrate a
compelling interest in order to justify criminalizing such personal
choices, and no such compelling interests have been urged, must less
shown, by the state in this case.131
The case returned to the Louisiana Supreme Court in 1995.132
The law was sustained by the Court against claims of discrimination and
excessive punishment. Chief Justice Calogero again dissented. He argued
that the sentence of up to five years in prison for a solicitation was an
excessive sentence under the state constitution. He noted that the
antiquity of the statute against sodomy was irrelevant given that the
state constitution’s penalty provision dated from only 1974. Also, he
noted that Baxley could have solicited a police officer to commit rape or
arson and would have received a lesser penalty.133
Judge Michael Bagneris issued a preliminary injunction against the
enforcement of the sodomy law, pending trial in another challenge to the
law in Louisiana Electorate of Gays and Lesbians, Inc. v. State.134
The state appealed the injunction, but the Louisiana Supreme Court refused
to hear the case,135 allowing the new case’s
trial to proceed. Trial Judge Walter Kollin refused to issue an injunction
against enforcement of the law because the Orleans Parish District
Attorney pledged that the law was not being, and would not be, enforced
against consenting adults in private. As of 2001, this case still is being
batted around in the state courts.
It may be futile, however. In 2000, the Louisiana Supreme Court, in State
v. Smith,136 by a 5-2 vote, shut the
door to privacy challenges to the sodomy law. Speaking through Justice
Chet Traylor, the Court interpreted the state constitution's privacy
amendment in a contradictory manner. First, it was
undisputed that the guarantee of the right to privacy contained in
the Louisiana Constitution affords more stringent protection of
individual liberty than the Fourth Amendment to the Federal
Constitution [citation omitted].137
"That being said," the amendment had been interpreted by a
lower Louisiana court as "an explicit expression of the principles
recognized in the United States Supreme Court decisions on the right to
privacy." "This clearly is true."138
So, which is it? Broader than the federal constitution or identical to it?
In addition, said the Court, declaring a constitutional right to engage in
oral or anal sex would "violate the fundamental principle of
separation of powers." Then, without any explanation, the Court said,
"There is no constitutional impediment to the legislature enacting
[the sodomy statute]."139 After
giving a statutory history of the Louisiana sodomy law, the Court twisted
the privacy amendment when it said that no
reasonable Louisiana citizen would consider that the result of
voting to ratify a general constitutional guarantee of
"liberty" or "privacy" would be to divest that
citizen's elected legislators of the right to continue the specific
statutory proscription against sodomy or any other criminal act. To
the contrary, any reasonable citizen would believe that he or she
thereby was retaining the liberty to make such determinations through
elected legislators. There is no evidence that the people adopting
the Louisiana Constitution at referendum intended to create a
constitutional right to engage in oral or anal sex. [Emphasis added.]140
In effect, the Court said that the public voted for a privacy amendment
to protect the right of the legislature to regulate their private
behavior.
In dissent, Chief Justice Pascal Calogero, continue a crusade of more
than a quarter century on the Court, although his words are less
passionate than in the past, perhaps reflecting a weariness.141
Also dissenting was Justice Harry Lemmon, who criticized the majority for
an "inadequate analysis" of the privacy issue142
and for enforcing "a personal moral fiat."143
Lemmon noted that the majority's opinion swept broadly enough to include
married couples in its net.144 Justice
Bernette Johnson joined the majority solely because she believed that the
acts prosecuted were non-consensual and non-private.145
A motion for rehearing was denied by the Court by the same 5-2 vote.
Justice Harry Lemmon wrote a dissent from the denial, noting the argument
that the 1942 amendment to the sodomy law might actually have legalized
oral sex, and that question had not been addressed by the Court.146
Perhaps spurred by the breadth of the Smith decision, in 2001,
the Louisiana House of Representatives defeated a repeal of the state's
sodomy law only on a 46-46 tie vote. A month later, the state Senate
approved an amendment to a sex offender registration bill that would have
repealed the law. But, in conference committee, the chief sponsor of the
registration bill convinced the committee to drop the consenting adults
repeal.147
Period Summary: It was after the Hardwick decision that most
of the court cases attacking the Louisiana law were launched. Until
2000, the Louisiana Supreme Court avoided a head-on constitutional
decision on the law because the cases presented to it all involved
public sex or solicitation. In that year, the Court stepped into the
broad issue of privacy and sullied itself with an opinion deserving
censure. Nevertheless, the state legislature appears to be close to a
statutory repeal.
