Louisiana High Court Upholds Sodomy Law
PlanetOut,
July 7, 2000
Summary: Louisianas Supreme Court found nothing in the state constitution to
keep the legislature from dictating what kind of sex is acceptable.
The Louisiana Supreme Court ruled 5 - 2 on July 6 to uphold the states 1895
sodomy law, which makes oral or anal sex a felony punishable by up to five years
imprisonment, even for private, non-commercial acts between consenting adults, regardless
of their gender. The ruling reversed a state appeals court, which found the law violated
privacy rights. But although this criminal appeal failed, it does not impede the progress
of a separate pending civil challenge to the law by the group Louisiana Electorate of Gays
and Lesbians.
Writing for the majority, Justice Chet Traylor rejected arguments based on the state
constitutions privacy guarantee, saying, " Simply put, commission of what the
Legislature determines as an immoral act, even if consensual and private, is an injury
against society itself. A violation of the criminal law of this state is not justified as
an element of the liberty or privacy guaranteed by this states
constitution. The freedom to violate criminal law is simply anarchy and, thus, the
antithesis of an ordered constitutional system. ... Any claim that private sexual conduct
between consenting adults is constitutionally insulated from state proscription is
unsupportable."
Traylor and the majority denied that the law posed any threat to consenting adults. He
wrote that if a proscribed act "is truly consensual and private, it would be
impractical to enforce the statue against the participants, since both would be guilty of
the crime of sodomy and, consequently, there would be no victim to file charges and
institute a prosecution. If the act takes place in private, and one of the participants
files criminal charges against the other, it can be subject to prosecution as a
nonconsensual act." On the other hand, the majority believe the law aids in the
prosecution of sex offenders.
Dissenter Justice Harry Lemmon denied that the law has any efficacy against sex
offenders but maintained that it represents government intrusion into private lives, and
dissenter Chief Justice Pascal Calogero, Junior wrote that "the government has no
legitimate interest or compelling reasons for regulating, through criminal statutes,
adult, private, non-commercial, consensual acts of sexual intimacy." Lemmon wrote
sneeringly, "The only apparent purpose of the prohibition is to dictate the type of
sex that is acceptable to legislators. Two married persons should be able to choose how
they conduct their nonpublic, voluntary sexual relations in the security of their own
home; a law that takes that choice away from them is an intrusion by the legislative
branch that is constitutionally intolerable."
In its response to the ruling the Lambda Legal Defense and Education Fund, which filed
an amicus brief on behalf of various religious groups and individual clergy who oppose
criminalizing private sex acts in the name of public morality, also took aim at the
legislators as much as the justices. "The Court declined to second guess the
legislatures determination of what is constitutional. ... While that logic defies
the American principle of having checks and balances, it also obligates the citizens of
Louisiana to make sure that their representatives move to end this gross invasion of their
privacy," according to Lambda Legal Director Beatrice Dohrn. Lambda Staff Attorney
Stephen R. Scarborough, who wrote the organizations brief, called the decision
"a serious abdication of the courts responsibility to impose constitutional
standards, and its reasoning is intellectually dishonest."
The case before the court was a heterosexual one. Mitchell Smith was accused of
assaulting a woman who prosecutors maintained was too intoxicated to consent. The evidence
failed to convict him of rape, but both Smith and the woman testified to having consensual
oral sex, so a trial judge convicted Smith under the "crimes against nature"
statute and gave him a suspended sentence of three years imprisonment and two years
probation. Louisianas 4th Circuit Court of Appeal ruled that the law violates
privacy rights when applied to private acts of consenting adults, and overturned
Smiths conviction. The state Supreme Court reinstated both his conviction and
sentence.
A related case considered along with Smiths also failed. A group of sex workers
caught in a police sting challenged the disparity between the felony charges and five-year
sentences they faced (along with listing as a sex offender) for just soliciting oral sex
for money and the misdemeanor charge and six-month sentence for prostitution, soliciting
intercourse in exchange for money. The state Supreme Court rejected this appeal 6 - 1,
with Calogero the only dissenter, as Traylor wrote for the majority that different
penalties can be set for different sex acts just as they are for the sales of different
kinds of drugs. The high court reinstated the indictments against the sex workers which a
trial judge had thrown out.
The American Civil Liberties Unions (ACLU) Lesbian and Gay Rights Project had
filed a friend-of-the-court brief. The Projects associate director Michael Adams
said, "This decision is obviously disappointing, but we have never looked at
eliminating sodomy laws as short-term work. The struggle against these unconstitutional
laws has gone on for decades, and we are committed to continue the fight until every
single state is free of such statutes." Louisiana is one of 18 states which along
with Puerto Rico criminalize certain acts between consenting adults. Five of those
states laws apply only to acts between people of the same gender. The ACLU is
currently challenging the Puerto Rico and Minnesota laws, while the Lambda Legal Defense
and Education Fund is challenging some others, notably Texas.
No hearing date has been set for the civil challenge in Louisiana, which was first
filed in 1994. In March 1999, that lawsuit led Orleans Parish Civil District Judge Carolyn
Gill Jefferson to strike down the law as violating the state constitutions privacy
guarantees a ruling effective only in Orleans Parish. The state has appealed her
decision.
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