Last edited: February 12, 2005

Shurtleff Stands Behind His Support of Antisodomy Law

Salt Lake Tribune, May 3, 2003
P. O. Box 867, Salt Lake City, UT 84110
Fax: 801-257-8950

By Rebecca Walsh, The Salt Lake Tribune

A controversial friend of the court brief that Utah Attorney General Mark Shurtleff signed has jeopardized its author’s federal court nomination.

Alabama Attorney General Bill Pryor wrote the brief in support of a Texas antisodomy law the U.S. Supreme Court is reviewing. His words have drawn fire from gay rights groups and threaten his nomination to the 11th Circuit Court of Appeals in Atlanta.

But Shurtleff stands behind the brief, filed Feb. 18. He says the 28-page argument was painstakingly written and primarily quotes previous Supreme Court rulings.

“We’re just using the court’s words,” Shurtleff said. “Some people could try to say this is expressing the personal attitudes of the attorney general. We were just trying to express what we believe Utah law says.”

Although 13 states have sodomy bans similar to the Texas law, just Pryor, Shurtleff and one other state’s attorney general signed the document.

Utah’s decades-old sodomy law is at stake in the case. If the court decides it is unconstitutional to punish gay couples for what happens in their bedrooms, the sodomy bans could be overturned.

Justices heard arguments in the Texas case in March. A ruling is expected by July. Meantime, Pryor’s confirmation hearings have not been scheduled.

Pryor argues individual state legislatures with their unique sensibilities—not the U.S. Supreme Court—should establish laws dealing with homosexuality. Unless rights are specifically outlined in the U.S. Constitution, he says the court has to consider history, legal traditions and practices—not political correctness and changing social mores.

By extension, Pryor wrote, “because homosexual sodomy has not historically been recognized in this country as a right—to the contrary, it has historically been recognized as a wrong—it is not a fundamental right.”

Later, Pryor continues, “A constitutional right that protects ‘the choice of one’s partner’ and ‘whether and how to connect sexually’ must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.”

Gay rights groups have protested Pryor’s nomination. And some have likened Pryor’s language to Pennsylvania Sen. Rick Santorum’s comments comparing homosexuality to incest, bigamy and polygamy.

“It’s the slippery slope argument,” said Kevin Cromer, president of the Utah Log Cabin Republicans. “It does not follow that decriminalizing homosexuality will lead to adultery subsequently being declared legal. Adultery is a breach of a contract between two people. It does not follow that incest will be decriminalized. Polygamists who are prosecuted are usually the ones who lure female children into sexual relations. That will always be a crime.”

But Shurtleff says comparing the legal arguments in the brief to Santorum’s comments is unfair: “That’s certainly not what I was saying by signing on.”

Then, said Cromer, “he shouldn’t have signed it if he didn’t mean to endorse what it says.”

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