Louisiana Sodomy Law Challenged
January 8, 2001
Having lost on the question of whether Louisianas sodomy law violates privacy
rights, activists are pressing their case in a state appeals court with a different set of
Louisianas 4th Circuit Court of Appeal heard arguments January 8 about whether
the states 196-year-old anti-sodomy law violates rights guaranteed by the Louisiana
Constitution. Among the charges being made by the Louisiana Electorate of Gays and
Lesbians (LEGAL) in the New Orleans courtroom was that the law discriminates against gays
and lesbians by prohibiting oral and anal intercourse between consenting adults. Last
July, the Louisiana Supreme Court ruled that the law, which punishes sodomy with up to
five years imprisonment, did not violate privacy rights. But it has never ruled on the
constitutional issues raised by this case.
Louisiana is one of 18 states that, along with Puerto Rico, criminalize certain sex
acts between consenting adults. Five of those states laws apply only to acts between
people of the same gender. The American Civil Liberties Union is currently challenging
Puerto Rico and Minnesotas laws, while the Lambda Legal Defense and Education Fund
is challenging some others, notably the one in Texas.
The lawsuit challenging Louisianas "crimes against nature" law was
first filed in 1994. In March 1999, district Judge Carolyn Gill-Jefferson ruled that the
law violated the state constitutions privacy guarantee. But in July 2000, the
states supreme court effectively reversed that decision when it decided in a
separate case (this one brought by a heterosexual man) that citizens privacy rights
were not threatened by the sodomy ban. Writing for the majority, Justice Chet Stevens
said, "Any claim that private sexual conduct between consenting adults is
constitutionally insulated from state proscription is unsupportable."
However, the current case focuses on the handful of non-privacy issues on which Judge
Gill-Jefferson decided in favor of the state. LEGAL argues that the law is "viciously
directed" against gays and lesbians and serves to legitimize anti-gay sentiment. It
"denies homosexuals the right to have sex," said John D. Rawls, LEGALs
attorney, before the three judge panel on January 8, according to the Associated Press.
"This law says that gay people are perverts; it says that gay people are sex
offenders. ... That is cruel, unusual punishment."
Attorneys for the state claimed the law was not discriminatory since it bars both
homosexuals and heterosexuals from engaging in sodomy. Additionally, they said it was
completely permissible for the state to prohibit conduct it deems immoral. However, Rawls
countered that since gay men and lesbians cannot engage in sex that is not sodomy, the law
is indeed discriminatory.
The appeals court arguments are crucial for LEGAL, according to the Associated Press,
since the issues raised by the case are exclusively on the state level and cannot be
appealed to the federal courts. Moreover, the U.S. Supreme Court ruled in 1985 in
its notorious 5 - 4 Bowers vs. Hardwick decision that states do have the right to
regulate private sexual behavior. Still, courts have managed to throw out sodomy laws in
five states over the last eight years.
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