High Court Ponders Importuning Law
Gay
People’s Chronicle February 8, 2002
P.O. Box 5426, Cleveland, Ohio 44101
Fax: 216-651-1052
Email: chronicle@chronohio.com
By Eric Resnick
Columbus—As the Ohio Supreme Court heard oral
arguments on the state’s importuning law February 5, it appeared that both
sides agreed on many points.
The 30-year-old law makes it a crime to proposition someone of the same sex
if it would offend them. It does not apply to heterosexual situations.
The statute is often used for police stings in parks, where gay men are
charged for asking an undercover officer if they are interested in sex.
This case arose when Eric R. Thompson of Ashtabula leaned out his car
window in 1999 and asked a male jogger if he wanted oral sex. The jogger said
to leave him alone, and Thompson complied. But the jogger complained to
police, and Thompson was arrested and convicted of importuning. He spent six
months in jail, the maximum time allowed.
With help of Ashtabula County public defender Marie Lane, Thompson appealed
the conviction on constitutional grounds, saying the law violates the
equal-protection clauses of both the Ohio and United States constitutions.
The Eleventh Ohio District Court of Appeals in Warren upheld Thompson’s
conviction in December 2000, but did so reluctantly.
The appeals court deferred to two previous cases where the Ohio Supreme
Court upheld the importuning law. But one of these was based on different
constitutional arguments, and the other did not provide a published decision,
which Lane said renders that case non-binding as a precedent.
"What is not clear is why [the law] would only apply to same sex
solicitation and not to opposite sex solicitation," the appeals court
commented in its ruling. "It is inherently inconsistent for the Ohio
legislature to now criminalize homosexual solicitation after it has chosen to
decriminalize homosexual conduct between consenting adults."
The legislature passed the importuning law as part of a 1972 revamp of the
criminal code that also repealed Ohio’s sodomy law. The measure took effect
in 1974.
The court wrote, "Although [Thompson’s] arguments are compelling,
this court has no authority to overrule the Supreme Court of Ohio."
The Eighth Ohio District Court of Appeals in Cleveland found in another
case last May that the law violates equal protection guarantees. Cleveland
prosecutors did not appeal that ruling to the state supreme court, however.
The Eleventh District opinion set the stage for the February 5 hearing
before the seven justices, during which both sides were often arguing the same
side of the issue.
Representing Thompson was public defender Lane. The state was represented
by Ashtabula County assistant prosecutor Teri Burnside.
Lambda Legal Defense and Education Fund staff attorney Heather Sawyer
assisted Lane. Burnside had assistance from the Ohio Attorney General’s
office.
The hearing lasted one hour, with each side allowed 30 minutes to present
their case and answer questions from the justices.
Lane went first, and was quickly interrupted by questions from Justices
Paul E. Pfeifer and Deborah L. Cook. Pfeifer asked about the appropriateness
of the legislature passing the law.
Cook asked, "We can argue all day about what the legislature ought to
have included in the law and didn’t, but if you are seeking a change in the
law, shouldn’t you lobby the legislature for it rather than saying it cannot
be upheld?"
Lane told the justices that the law was passed to prevent violence stemming
from a person being solicited by someone else of the same sex, and that times
and the culture have changed since it was passed.
"The state has no rational interest in keeping this law around,"
said Lane.
Lane’s brief to the court alleges animus against homosexuals by the
legislature of that time.
Pfeifer asked, "Isn’t it difficult to say the legislature acted out
of animus when the revised criminal code it is part of made all sorts of
sexual acts illegal?"
Lane answered by quoting the legislative notes found in the back of the
Ohio Revised Code, where members of the House Judiciary Committee referred to
homosexual behavior as "highly repugnant and deviant" during debate
on this section.
Justice Andrew Douglas asked Lane, "At what time did the defendant
decide to challenge the constitutionality of this law?"
"Immediately," Lane responded.
Douglas then asked if the attorney general had been served notice that the
constitutionality of the law was being challenged.
"They were never served," answered Lane.
Both Lane and Burnside agreed after the hearing that Douglas was fishing
for a technical "out" for the court to avoid ruling on the core
issues in this case.
Near the end of the hearing, Douglas, who has a reputation of being very
technical about fine points of law, brought it up again, reading a civil rule
aloud from a book.
"What he was reading only applies to civil actions," said Lane,
"and this was a criminal action."
Burnside agreed, saying, "I never heard of that rule applying to
anything other than civil actions, either."
Burnside then began her presentation to the court, and was quickly
interrupted by a question from Pfeifer.
"Do you agree with the constitutionality of this law?" asked
Pfeifer.
"Our office grappled with it," said Burnside. "We don’t
have the liberty to determine whether or not a law is constitutional. That is
up to this court."
Burnside said that during Thompson’s prosecution, her office presumed it
to be constitutional and would continue to do so if the court ruled it was.
"But we agree with the reasoning of the Eleventh District,"
Burnside added.
"When the law was put into effect, it was clear who this law was to
target," Burnside continued, "and because of it, the state has been
asked to argue the undefendable."
Burnside told the justices that prosecutors are struggling over this law
and how it should be applied.
"We appealed this case because we’re asking the court to tell us how
it doesn’t violate equal protection," said Burnside, "and the
lower courts are asking for you to explain how this law is
constitutional."
On the question of whether the law passes the legal "rational
basis" test, Cook asked, "Can you say there is no relationship
between homosexual advances and lessening violence?"
Burnside pointed to the 1997 U.S. Supreme Court Romer v. Evans decision. It
struck down a Colorado measure banning gay and lesbian civil rights laws
because it encoded anti-gay animus into the state constitution.
"That animus issue applies to the decision before us," she said.
"If a man solicits another man’s wife in front of him, would that
not elicit the same response as if the man was solicited by a man?"
Burnside asked the justices.
Burnside continued by raising other concerns, including that nearly all the
people charged with importuning are men caught in questionable sting
operations, and that women who solicit other women are rarely charged.
"And what is the state interest in not protecting heterosexual
women?" Burnside said, noting that the law only applies in cases where
the parties are the same sex. "What woman hasn’t experienced the same
offense on any Saturday night?"
"Should women offended by men have to become violent to get
protection?" Burnside pressed. "Are we to protect only men from
being solicited by other men and leave behind women?" Burnside told the
justices it was her duty as a prosecutor to seek justice, not just
convictions.
Following the hearing, Lambda’s Sawyer criticized Justice Cook’s
assertion that the best way to handle the law is to have the legislature
repeal it, saying it is the duty of courts to rule on the constitutionality of
laws passed by the legislature.
"But the most compelling thing about this case," said Sawyer,
"is who hasn’t supported the law."
She noted that no prosecutor’s group or other law enforcement association
has filed friend of the court briefs in favor of the law.
"[The current law] is so fraught with constitutional
difficulties," Sawyer said.
Lane noted that despite Justice Douglas’ raising of the civil rule, he
was in the 5-2 majority that decided to hear the case.
A decision is expected within three to six months.
Thompson did not attend the hearing.
Lane said since Thompson has served the maximum sentence, not even the
vacating of his sentence by the Supreme Court would help him, and he shouldn’t
expect an apology from the state.
"It might affect the conditions of his parole, though."
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