Louisiana High Court Mulls Sodomy Law
PlanetOut News, April 12, 2000
SUMMARY: The first case to reach Louisianas Supreme Court involves
heterosexual oral sex, but its progress cant be separated from the pending civil
lawsuit by gay and lesbian activists.
Gays and lesbians are challenging Louisianas 195-year-old "crimes against
nature" law with a civil lawsuit, but it was an entirely heterosexual criminal case
that was the first to reach the states Supreme Court on April 11. Both cases argue
that the law violates the Louisiana constitutions privacy guarantee a right
that is not protected under the federal constitution although the civil case also
argues that the law is particularly damaging to gays and lesbians. Lower courts have
already thrown out the law, which makes oral and anal sex a felony punishable by up to
five years imprisonment even when performed in private between consenting adults
without money changing hands. The court gave no indication when it will rule.
The state high court chose to combine the case of a man convicted under the statute for
consensual oral sex when a rape charge failed and the case of several sex workers; the
women face the same possible felony charge and five-year sentence for commercial oral sex
but only a misdemeanor punishable by up to six months for commercial intercourse.
The man, Mitchell Smith, was convicted in 1996 and given a three-year suspended prison
term plus two years probation. Louisianas 4th Circuit Court of Appeal rejected state
arguments that oral and anal sex acts are immoral, discourage procreation and result in
brief and shallow relationships; instead the court opted to examine legal cases, including
the quite similar case that led the Georgia Supreme Court to strike down that states
equally venerable sodomy law in late 1998. That Louisiana appellate court in early 1999
unanimously reversed Smiths conviction and declared the law unconstitutional insofar
as it applied to private non-commercial acts between consenting adults. The American Civil
Liberties Union (ACLU) joined Smiths case before the state Supreme Court to argue
that the state has no compelling interest and in fact no rational interest
in criminalizing private non-commercial sex acts between consenting adults, regardless of
"We dont have police officers in our bedrooms; we have the state in our
bedrooms," Smiths attorney Byrne Dyer III told the state high court. "We
have the state in our bedroom saying, All of you alleged of having oral sex are
alleged of committing a felony."
Orleans Parish Assistant District Attorney Valentin Solino made a few counterpoints,
but primarily asked the court to delay its ruling on the constitutionality of the
"crimes against nature" law until after hearing the civil lawsuit by the
Louisiana Electorate of Gay and Lesbians (LEGAL), for which no date has been set. Solino
noted that the privacy argument the state appeals court relied on in Smiths case had
not actually been made before that court, and that it was not actually an issue in
Smiths case. He admitted that it would be "a steep hill to be climbed" to
try to show that the law does not in fact violate privacy rights, but he had a simpler
suggestion: the Supreme Court could simply order Smith acquitted, since at the time of his
conviction a court order was already in effect in New Orleans prohibiting enforcement of
the law. "That gives the court the opportunity to decide [Smiths conviction]
without taking up the privacy issue."
The Associated Press described this as "anything but a spirited defense" of
the law, but Solino also noted that, "If the Legislature says oral sex is different
from vaginal sex and we should punish it differently, we have a right to do that."
One sex worker was represented by Cassandra Caswell of the Tulane Law Clinic and two
others by Sharon Setzer of the Louisiana Appellate Project. Both argued that oral sex is
not in fact "against nature" but has been found in research to be a common
practice, with perhaps 95% of the U.S. adult population having participated. Setzer argued
that the difference in penalties between oral sex and intercourse is so extreme as to
constitute a violation of the Eighth Amendment to the U.S. Constitution, which prohibits
"cruel and unusual punishment." She also noted that anyone convicted of
soliciting oral sex would be subject to recent sex offender laws requiring registration
with police and making their record known to neighbors, landlords and schools. Caswell
described the laws enforcement as "arbitrary and capricious."
"In our society, few matters are considered more private than sexual relations
between consenting adults," the ACLUs friend-of-the-court brief said.
"When considering a public morality justification for [the sodomy statute], it is
important for the Court to recall that prohibitions on interracial marriage, and the
segregation of races generally, were values deeply embedded in the social morality of many
areas of the United States and were values that invoked both God and nature. But appeals
to natural or theological ethics cannot constitutionally be used to legitimate laws whose
sole function is to give effect to private citizens prejudice or conviction."
It noted that, "during the past decade, state court after state court has struck down
sodomy statutes like [Louisianas], holding that private, non-commercial sexual
activity between consenting adults is entitled to constitutional protection and no
governmental interest justifies denying this protection" so that "rather than
plowing new ground, [a ruling against the sodomy law] will be consistent with the
overwhelming trend in this countrys courts and legislatures."
Despite the U.S. Supreme Courts 5 - 4 finding in Georgias notorious
"Bowers v. Hardwick" case that the states do have the right to regulate private
sexual behavior (a decision in which swing vote Justice Lewis Powell later felt he should
have gone the other way) courts have recently thrown out sodomy laws in not only Georgia
(1998) but also Maryland (1999), Montana (1997), Tennessee (1996), and Kentucky (1993),
thanks in part to the ACLU. Louisiana is one of thirteen states with a sodomy law applying
to both heterosexual and homosexual acts, while five other states have laws applying
exclusively to gays and lesbians. Challenges are in progress in Arkansas, Puerto Rico,
Texas and Virginia.
The civil lawsuit challenging Louisianas "crimes against nature" law
was first filed in 1994. In March 1999, an Orleans Parish Civil District judge rejected
state arguments that gays and lesbians "chose" their sexual orientation and that
the law serves to promote marriage and procreation, to declare the law in violation of the
state constitutions privacy guarantee. The lawsuits argues that the law
"is viciously directed" against gays lesbians and serves to legitimize anti-gay
sentiment. The lead attorney for the several plaintiffs, gay John Rawls, has described the
"crimes against nature" law as "Louisianas official condemnation of
its lesbian and gay citizens."
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