Gay Rights Group Challenges State’s Anti-Sodomy Laws
Associated Press, December 17, 2001
http://www.boston.com/dailynews/350/region/Gay_rights_group_challenges_st:.shtml
By Steve Leblanc
BOSTON—In Mark Merante’s eyes, the life he shares
with his long time partner Adrien Saks is a committed, loving relationship.
But a 350-year-old Massachusetts law describes the couple’s physical
expression of that love as an "abominable and detestable crime against
nature" punishable by a lengthy jail term.
It’s a law Merante is determined to wipe off the state’s criminal code.
The 35-year-old Boston attorney and his partner are two of ten plaintiffs,
gay and straight, who are asking the state’s highest court to rule
unconstitutional laws that bar certain sex acts.
As part of the lawsuit, Merante and the other plaintiffs acknowledge
engaging in the forbidden activities.
"As two openly gay may who have been together seven years, unless we
were celibate, pretty much everyone can figure out we had broken those laws at
some point," Merante said. "What consenting adults choose to do in
private should be left to them."
The anti-sodomy laws, which date to colonial times, establish penalties of
up to 20 years for anal intercourse and 5 years for any "unnatural and
lascivious act," interpreted to mean oral sex.
While few people are charged with the statutes, they can be used to
intimidate, according to Jennifer Levi, an attorney for Gay and Lesbian
Advocates and Defenders, which brought the case.
Levi cited the case of a man arrested after having consensual sex with
another adult in a secluded area of state-owned land in 1999.
Levi said police used the threat of the 20-year felony to pressure the man,
identified as "John Doe" in court briefs, to admit to trespassing
and engaging in "open and gross lewdness." The man paid a $200 fine,
but the charges were later dismissed.
The laws, even if rarely used, pose a "pervasive and serious"
harm because they threaten government intrusion into the most intimate areas
of a person’s life, Levi said.
The plaintiffs are asking the court to overturn the laws arguing they
violate the right to privacy, equal protection, freedom of expression and the
prohibition against cruel and unusual punishment.
"The court has articulated this protective zone of privacy ... and
said essentially people have a right to be let alone," Levi said.
"Massachusetts really stands alone in upholding these archaic laws."
The attorney general’s office defended the laws during a hearing earlier
this month before the Supreme Judicial Court.
Attorneys for the state argued that the laws are not used to target private
sexual activity, but are useful in clamping down on public sex.
"All of the plaintiffs’ constitutional arguments ... are grounded on
the mistaken premise that the challenged laws apply to the private consensual
conduct of adults," according to the brief submitted by Attorney General
Thomas Reilly.
"There is no fundamental right for consenting adults to engage in
sexual acts in public," Reilly said in the court document.
Others defend a stricter reading of the laws, arguing the state has an
interest in regulating sexual acts even those conducted between consenting
adults in private.
"(These laws) were written in a time when moral standards were clear
and society and culture supported that a sexual union in its most natural form
was a heterosexual union," said Ron Crews, president of the Massachusetts
Family Institute, a conservative research and educational organization based
in Newton.
"The state was just affirming what the (human) bodies had been created
to do," he said.
Colonial Massachusetts inherited its prohibition against sodomy from
English law, which quoted directly from the Book of Leviticus in the Bible.
In 1697, the prohibition was recast using the "detestable and
abominable sin" language. In 1836 the Legislature rephrased the statute
in nearly the same form as it stands today.
By the 1930s, sodomy laws existed in all 50 states. In 1970, Illinois
dropped references to sodomy when updating its criminal code, according to the
lawsuit filed by GLAD.
During the next three decades dozens of other states abolished similar
laws, either through legislative action or court rulings.
Only 13 states, including Massachusetts, still have sodomy laws on the
books, according to the Lambda Legal Defense and Education Fund, a national
gay rights group.
If the Massachusetts Legislature is reluctant to repeal the laws, it’s up
to the courts to step in, Merante said.
"These laws are remnants of a time centuries ago," Merante said.
"Most people think they are sort of ridiculous...unfortunately the
Legislature hasn’t had the courage to repeal them."
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