Louisiana Supreme Court Rejects Challenge to Sodomy Law
By Arthur S. Leonard, July 10, 2000
A majority of the Louisiana Supreme Court ruled on July 6 that the state’s law
criminalizing "crime against nature" as a felony does not violate the right of
privacy under the Louisiana constitution. The opinion for five members of the court by
Justice Chet Traylor makes the rather extraordinary argument that because there was no
evidence that the general public which ratified the most recent version of the Louisiana
constitution in 1974 intended to repeal the state’s sodomy law when they added a
right of privacy to the state constitution, that provision cannot be used to invalidate
the sodomy law.
In effect, the court’s opinion holds that new constitutional provisions, to the
extent they restrict the power of the state legislature, only restrict it from passing new
laws, and not from continuing old laws in effect.
The case arose from the prosecution of Mitchell Smith, who was charged with rape by a
woman whom he "picked up" in a bar and brought to a motel to have sex. The
woman, not named in the court’s opinion, which preserves the tradition of treating
victims of sexual assault anonymously, testified that she passed out at the motel, but
awoke to find Smith undressing her. She claimed that she cried out "rape" but
was unable to move, and that Smith forced her to have vaginal and anal intercourse. Smith,
on the other hand, testified that the only sexual contact he had with the victim was oral
sex, which was consensual. After she became ill, Smith drove her to her home. The next
day, she went to the police and swore a sexual assault charge against Smith.
Smith waived his right to a jury trial. The trial judge found him to be a more credible
witness than the alleged victim, and decided that the only sex that occurred was
consensual. Nonetheless, consensual oral sex between adults in private in Louisiana is a
felony, so the trial judge sentenced Smith to three years in prison, then suspended the
sentence and imposed two years of probation.
Smith appealed to the Louisiana 4th Circuit appeals court, which reversed his
conviction, finding that the Louisiana constitution’s express protection of an
individual right of privacy made it improper to apply the state’s sodomy law to
non-commercial sexual conduct between consenting adults in private.
Justice Traylor provided a detailed history of the criminalization of sodomy in
Louisiana, dating back to 1805, when the territory was purchased by the U.S. from France,
to show that such a crime was very well-established when the present constitutional
privacy provision was enacted in 1974. "A constitutional right to privacy obviously
cannot include the right to engage in private acts which were condemned as criminal,
either by statute or case law interpretation thereof, at the very time the Louisiana
Constitution was ratified," wrote Traylor. "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."
Traylor, driving his point home ad infinitum, asserted that "any claim that
private sexual conduct between consenting adults is constitutionally insulated from state
proscription is unsupportable," citing the U.S. Supreme Court’s 1986 decision, Bowers
v. Hardwick, which rejected a federal privacy challenge to Georgia’s sodomy law.
Traylor also contended that if particular conduct was truly consensual, it would be
"impractical to enforce the statute against the participants," since they would
have both participated in illegal acts and "there would be no victim to file charges
and institute a prosecution." Thus, he implicitly cast doubt on the veracity of the
trial judge, who found the conduct in the case to be consensual.
Traylor’s contention relies upon a thoroughly discredited method of constitutional
interpretation. Under his approach, the U.S. Supreme Court’s seminal decision in Brown
v. Board of Education (1954), which declared racial segregation in schools
unconstitutional under the Equal Protection Clause, would be invalid because the same
federal legislators who framed and recommended the Fourteenth Amendment to the states also
maintained a segregated public school system in the District of Columbia.
Seeking to find some philosophical grounding for the court’s opinion, Traylor
stated that "commission of what the legislature determines as an immoral act, even if
consensual and private, is an injury against society itself." Then, after quoting
from the Hardwick decision Justice Byron White’s witticism that the courts
"will be very busy indeed" if "essentially moral choices [by legislators]
are to be invalidated under the Due Process Clause," Traylor made a "separation
of powers" argument, in effect holding that if members of the public want to get rid
of the Louisiana sodomy court, they will have to go the legislature to get it repealed,
because it is not proper for courts to invalidate popularly enacted criminal statutes.
Two members of the court dissented. Justice Harry Lemmon and Chief Justice Pascal
Calogero, Jr., each contended that the sodomy law violates the state constitution’s
privacy provision.
Lemmon wrote, "Whether or not one agrees with the moral or religious views of
heterosexual oral sex held by the legislators who voted to enact Section 89A is irrelevant
to the constitutional analysis. The critical issue is whether those legislators can
constitutionally impose those views on a citizen whose non-public conduct, in his own home
with a person capable of consenting and without force, coercion or intimidation, does not
involve use of contraband and does not cause injury to any other person or to the
community. In other words, can the Legislature interfere with an individual’s right
to be left alone in the security of his or her home, as long as the person is not
interfering with the rights of other individuals or of the public in general?"
Lemmon concluded that the "only apparent purpose of the prohibition is to dictate
the type of sex that is acceptable to legislators . . . this purpose does not justify an
intrusion . . . into the constitutionally guaranteed security of one’s home."
Chief Justice Calogero, after observing that Louisiana had specifically adopted a
broader right of privacy in its constitution than the federal right involved in the Hardwick
case, asserted "that the sweeping nature of the statute, in its prohibition of
consensual, private, non-commercial acts of sexual intimacy, invades that area of
protected privacy guaranteed by Article I, Section 5 of our state constitution. . . On the
record before this Court, the State has advanced no argument, other than citing Bowers
v. Hardwick, which spoke only of rights vis a vis the federal constitution, and
presented no evidence tending to demonstrate that there is a compelling state interest
involved, or that [the statute] is a narrowly tailored legislative solution to a
legitimate state problem. I am of the opinion that the government has no legitimate
interest or compelling reasons for regulating, through criminal statutes, adult, private,
non-commercial, consensual acts of sexual intimacy."
Calogero rejected Traylor’s assertion that the privacy clause in the state
constitution could not be used to invalidate a pre-existing criminal statute, arguing that
"it is of no moment that there was no express mention, at the constitutional debates,
of a guarantee to engage in certain sexual acts."
The court had consolidated this case for argument with three other cases in which
prostitutes were challenging their sentencing for oral sex with their customers. Under
Louisiana law, the crime of prostitution involving vaginal intercourse is a misdemeanor,
with a relatively short prison sentence and/or a light fine, but if oral sex is involved,
the prostitutes can be charged with sodomy, a serious felony. They claimed that this was
discriminatory, and Chief Justice Calogero agreed, but the rest of the court did not,
voting 6-1 to uphold the differential penalties.
Technically, the struggle to get the courts to strike down the Louisiana sodomy law is
not over, however. State v. Mitchell Smith was one of two cases attacking the
statute from slightly different angles. The other case is a test case brought by a
Louisiana gay rights organization, which raises equality arguments as well as privacy
arguments. A New Orleans trial judge has already declared the sodomy law unconstitutional
in response to the other lawsuit, but its appeal was held up pending the state supreme
court’s disposition of Mitchell Smith’s case. Now the second case can go
forward. But this 5-2 vote does not bode well for a successful result.
Arthur S. Leonard, Professor, New York Law School
ALeonard@nyls.edu or ASLeonard@aol.com
212-431-2156
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