State of Louisiana v. Mitchell Smith Majority Opinion
SUPREME COURT OF LOUISIANA
STATE OF LOUISIANA
On Appeal from the Criminal District Court for the Parish of Orleans,
Honorable Patrick G. Quinlan, Judge
STATE OF LOUISIANA
LISA M. GARRETT
On Appeal from the Criminal District Court,
for the Parish of Orleans,
Honorable Frank A. Marullo, Jr. Judge
STATE OF LOUISIANA
On Appeal from the Criminal District Court,
for the Parish of Orleans,
Honorable Arthur L. Hunter, Judge
STATE OF LOUISIANA
KELLY A. BARON
On Appeal from the Criminal District Court,
for the Parish of Orleans,
Honorable Calvin Johnson, Judge
On September 24, 1995, the alleged victim and Mitchell Smith began talking while
consuming alcohol at Brewskis Lounge in Chalmette. After at least one cocktail
together, Mr. Smith asked her to accompany him to another bar, and the two left and went
to Gabbys, a bar in New Orleans East. While at Gabbys, the alleged victim felt
sick, apparently from consuming alcohol while taking epilepsy medicine. Although she
testified that she told Mr. Smith she wanted to go home, Mr. Smith convinced her to go to
a motel with him to "rest." She claimed she hesitantly agreed after insisting
that nothing was going to happen between them. Mr. Smith testified that he asked her to
"fool around" and she agreed. He also testified that they kissed in his car.
The accuser testified that, after arriving at Jacks Motel on Chef Menteur
Highway, she passed out on the bed, but awoke to find Mr. Smith undressing her. There was
conflicting testimony as to exactly what occurred at the motel. Mr. Smith testified that
oral sex occurred, but that consensual oral sex was the extent of the sexual activity. His
accuser claimed that she cried rape, but was unable to move, and was forced to have
vaginal and anal intercourse. After, she became ill, Mr. Smith helped her to his car and
drove her home.
On September 25, 1995, the alleged victim contacted the New Orleans Police Department
sex crimes unit and reported that she had been sexually assaulted the previous day. She
then showed a detective various locations where she had been with Smith, then known to her
only as "Mitch."
The State of Louisiana charged defendant, Mitchell Smith, by bill of information with
one count of aggravated crime against nature, a violation of La. Rev. Stat. 14:89.1. In a
separate bill of information, the State charged Smith with simple rape, a violation of La.
Rev. Stat. 14:43. After a bench trial, the court found Smith not guilty of simple rape,
but guilty of the lesser offense of simple crime against nature under La. Rev. Stat.
Smith filed a Motion in Arrest of Judgment, alleging that La. Rev. Stat. 14:89 is
unconstitutionally vague and overbroad, and denies him his right to privacy and fair
treatment in relation to others. The trial court denied the motion, and sentenced Smith to
three years in the Department of Corrections, suspended, and two years probation.
Mr. Smith appealed to the Fourth Circuit Court of Appeal, asserting the same challenges
made in his Motion for Arrest of Judgment. The Court of Appeal reversed Smiths
conviction, finding that La. Rev. Stat. 14:89(A)(1) was unconstitutional on its face as an
infringement upon the right to privacy expressly guaranteed by Article I, § 5 of the
Louisiana Constitution to the extent it criminalized the performance of private,
consensual, non-commercial acts of sexual intimacy between individuals legally capable of
Additionally, we have several consolidated cases to determine the constitutionality of
Stat. 14:89(A)(2) which prohibits "solicitation by a human being of another with
the intent to engage in any unnatural carnal copulation for compensation." All of
these cases involve defendants who allegedly solicited undercover police offices to engage
in oral sex for compensation. Following the granting of Motions to Quash La. Rev. Stat.
14:89(A)(2) as unconstitutional, the State now seeks review.
Because the aforementioned rulings declared parts of a statute unconstitutional, the
State is entitled to have all holdings appealed to this court under La. Const. art. V, §
STANDARD OF REVIEW
As a general rule, deferential standards of review apply to factual and other trial
determinations, while determinations of law are subject to de novo review. See,
e.g., City of New Orleans v. Board of Commrs, 93-0690, p. 28 (La. 7/5/94), 640 So. 2d
237, 253. Interpretation of a constitutional issue of law properly before this court is
reviewed de novo.
Vagueness and Overbreadth
The Fourth Circuit rejected Mr. Smiths claims that La. Rev. Stat. 14:89 is
unconstitutionally vague, and overbroad. In our discussions of vagueness, we have held,
relying on the summary of jurisprudence found in State v. Phillips, 365 So. 2d 1304
(La. 1978), that:
The statutory terms defining the crime as "unnatural carnal copulation"
involving the "use of the genital organ of one of the offenders" have acquired
historically and jurisprudentially a definite meaning. As between human beings, it refers
only to two specified sexual practices: sodomy (anal-genital intercourse of a specified
nature, . . .) and oral-genital activity (whereby the mouth of one of the participants is
joined with the sexual organ of the other participant).
State v. Neal, 500 So. 2d 374, 376 (La. 1987).
We believe that the relevant case law indicates that La. Rev. Stat. 14:89 is neither
unconstitutionally vague nor overbroad. The Fourth Circuit was correct in holding that La.
Rev. Stat. 1 2 14: 89 is neither unconstitutionally vague
The Right of Privacy Under the U.S. and Louisiana Constitutions
Article I, § 5 (the Privacy Clause) of the Louisiana Constitution of 1974 expressly
guarantees that every individual shall be secure against unreasonable invasions of
privacy. It is undisputed that the guarantee of the right to privacy contained in the
Louisiana Constitution affords more stringent protection of individual liberty than the
Fourth Amendment to the Federal Constitution. State v. Perry, 610 So. 2d 746, 756
(La. 1992). That being said, this court has never determined whether the right to engage
in oral or anal sex is protected by the Louisiana Constitution.
Interpreting Louisianas privacy clause, the Fourth Circuit noted, "This
clause is an explicit expression of the principles recognized in the United States Supreme
Court decisions on the right to privacy." This clearly is true. However, the United
States Supreme Court has never recognized a constitutional right to engage in oral or anal
sex. Quite the contrary, it has explicitly rejected a privacy rights claim challenge to
sodomy laws, specifically holding that the federal constitution does not prohibit states
from enacting laws which prohibit private acts of consensual sodomy between adults. Bowers
v. Hardwick, 478 U.S. 186 (1986).
"Sodomy was a criminal offense at common law and was forbidden by the laws of the
original thirteen States when they ratified the Bill of Rights." Bowers, 478
U.S. at 192. Clearly, Mr. Smith has no federal
constitutional right to engage in acts proscribed by La. Rev. Stat. 14:89.
Although we have explicitly rejected claims of La. Rev. Stat. 14:89 violating the
federal right to privacy, State v. McCoy, 337 So. 2d 192 (La. 1976), we have never
addressed La. Rev. Stat. 14:89 relative to a right to privacy guaranteed by the Louisiana
Constitution. In State v. McCoy, 337 So. 2d 192 (La. 1976) the defendant attacked
La. Rev. Stat. 14:89 as unconstitutional, inter alia, in light of the right of
privacy recognized in Griswold v. Connecticut, 381 U.S. 479 (1965). We rejected
this position, citing Doe v. Commonwealths Attorney for Richmond, 425 U.S.
901 (1976), which upheld a Virginia law punishing crimes against nature when committed by
The defense argues that the right to privacy guaranteed by the Louisiana Constitution
grants citizens the right to engage in private oral sex. However, the only case law in
Louisiana ever holding that the right of consenting adults to engage in private,
noncommercial sexual activity free from government interference is protected by the
Louisiana Constitutions privacy clause is the Fourth Circuits opinion
reversing the conviction of Mr. Smith.
In Neal, 500 So. 2d 374 (La. 1987), we reviewed the Crime Against Nature Statute
only for the purpose of explaining "solicitations of sexual acts for
compensation." Neal, 500 So. 2d at 377. In so doing, we left for another day
the determination of whether the request for recognition of a right to privacy insulating
all private sexual acts for consenting adults. Id. at 378. Later, in State
v. Baxley, 93-KA-2159, 633 So. 2d 142, 145 (La. 2/28/94), we stated:
On the facts presented, it is unnecessary to determine whether LSA R.S. 14:89(A)(1) is
unconstitutional and must be severed from the crime against nature statute. Baxley is
charged with the conduct described by LSA R.S. 14:89(A)(2), which prohibits soliciting
compensated crimes against nature. Although the parameters of the state constitutional
right to privacy in the sexual area have not been determined, See Neal, 500 So. 2d
at 378 (Privacy analysis under the federal constitution only, there is no protected
privacy interest in public, commercial sexual conduct.)
Today, however, we are asked to declare that our Louisiana Constitution confers upon
Louisiana citizens a right to engage in consensual acts which have been prohibited by
Louisiana law, in one form or another, for nearly two hundred years. In 1868, when the 14
Amendment was ratified, th all but five of the thirty-seven States (including Louisiana)
in the Union, had criminal sodomy laws. La. Rev. Stat., Crimes & Offenses, § 5
(1856). In fact, until 1961, all fifty states outlawed sodomy. Bowers, 478 U.S. at
192-93. There are currently seventeen states, including Louisiana, which prohibit some
form of crime against nature between consenting adults.
Precedent aside, however, the defendant would have us announce, as the Fourth Circuit did,
a constitutional right to engage in oral sex. This we are unwilling to do. If this court
were to hold that this constitutional right exists, not only would we misconstrue the
Louisiana Constitution, but we would also violate the fundamental principle of separation
of powers. There is no constitutional impediment to the legislature enacting La. Rev.
History of Louisianas Crime Against Nature Statute
A legislative history of La. Rev. Stat. 14:89 prohibitions provides the relevant
background necessary to determine whether these prohibitions violate any rights guaranteed
by the current Louisiana Constitution.
La. Rev. Stat. 14:89 is a comprehensive crime against nature statute. It covers both
heterosexual and homosexual acts, both private and public acts, and both commercial and
non-commercial acts. That ban applies only to acts, not to persons or groups. Crime
against nature was not originally a crime under the common law of England, being an
ecclesiastical offense only. However, it was
made a common law felony by statute so early that crime against nature was considered a
common law crime in this country. The crime
against nature has been prohibited in Louisiana at least since 1805 under the Laws of the
Territory of Orleans as a felony carrying a mandatory life sentence.
The law was defined only as the "abominable crime against nature" and provided
that the crimes "herein before named, shall be taken, intended and construed,
according to and in conformity with the common law of England. . ."
The Louisiana Revised Statutes of 1856 separated the crime against nature statute from
the offense of rape, but continued to provide that "[w]hoever shall be convicted of
the detestable and abominable crime against nature, committed with mankind or beast, shall
suffer imprisonment at hard labor for life." La. Rev. Stat. Crimes and Offenses, § 5
(1856). This provision, as it was written, was reenacted as part of the Louisiana Revised
Statutes of 1870, which also provided that all crimes be construed according to and in
conformity with the common law of England. See La. Rev. Stat. of 1870 § § 788,
976. In 1896 the legislature amended and reenacted La. Rev. Stat. § 788, clarifying that
the crime could be committed using the "mouth" of the offender and reducing the
possible penalty. 1896 La. Acts § 69 thus read:
Whoever shall be convicted of the detestable and abominable crime against nature
committed with mankind or beast with the sectual [sic] organs, or with the mouth, shall
suffer imprisonment at hard labor for not less than two years and not more than ten years.
This 1896 amendment specifically included acts involving the mouth. Prior to Act 69 of
1896, buggery and sodomy were the only crimes against nature prohibited by law. State
v. Murry, 66 So. 963, 966 (La. 1914). Early in the twentieth century, this court
recognized that the original "crime against nature" statute covered only sodomy,
buggery, and bestiality and that the addition of the phrase "with the sexual organs,
or with the mouth," in 1896 was a legislative expansion of the original common law
crime. See State v. Murry 66 So. 963 (1914); State v. Long, 63 So. 180
(1913); State v. Vicknair, 28 So. 273 (1900). Thus, this court in Murry noted
that "it was to include and denounce this particular crime against nature that the
statute of 1896 added the common-law crime against nature, with the sexual organs or
with the mouth." Murry, 66 So. at 965.
The Statute was next amended as part of the wholesale revision of the Criminal Code in
1942, which provided:
Crime Against Nature is the unnatural carnal copulation by a human being with another
of the same or opposite sex or with an animal. Emission is not necessary, and, when
committed by a human being with another, the use of the genital organ of one of the
offenders of whatever sex is sufficient to constitute the crime.
Whoever commits the crime against nature shall be fined not more than two thousand
dollars, or imprisoned, with or without hard labor, for not more than five years, or both.
1942 La. Acts. No. 43, Art. 89.
The Statute remained unchanged until 1975, when the legislature amended it to reflect
that crime against nature did not include those acts which would constitute rape. This
amendment enacted a provision which, substantively, reflected the present subsections
(A)(1) and (B). 1975 La. Acts No. 612, § 89. An amendment to the Statute in 1982 (in
addition to changing two of the rape designations) redesignated the sections of the
Statute and added the solicitation provision of (A)(2). A review of the legislative
history indicates that the legislators enacted the solicitation provision at the request
of the New Orleans Police Department in response to a "growing problem in male
prostitution." Minutes of the Senate Committee on Judiciary, Section C, July 6, 1982,
Interpretation of Right of Privacy under the Louisiana Constitution
The only possible remaining justification for concluding that La. Rev. Stat. 14:89 is
an unconstitutional exercise of the States police power to proscribe immoral conduct
is that, in Louisiana, the right to engage in consensual and private oral and anal sex,
although legislatively determined to be morally reprehensible, is guaranteed under our
constitution. As we discussed supra, La. Rev. Stat. 14:89, in one form or another,
has existed in some or all of Louisiana dating as long ago as the very early nineteenth
century. Crime against nature laws were amended and reenacted in different forms
throughout both the nineteenth and twentieth century. However, the prohibitions against
oral and anal sex were never specifically repealed.
A constitutional right to privacy obviously cannot include the right to engage in
private acts which were condemned as criminal, either by statute or case law
interpretation thereof, at the very time the Louisiana Constitution was ratified.
No reasonable Louisiana citizen would consider that the result of voting to ratify a
general constitutional guarantee of "liberty" or "privacy" would be to
divest that citizens elected legislators of the right to continue the specific
statutory proscription against sodomy or any other criminal act. To the contrary, any
reasonable citizen would believe that he or she thereby was retaining the liberty to make
such determinations through elected legislators. There is no evidence that the people
adopting the Louisiana Constitution at referendum intended to create a constitutional
right to engage in oral or anal sex. The question is not one of what is good or wise for
Louisiana society, but rather whether the peoples majority which adopted the
constitution at referendum intended to deprive the legislature of the power to deal with
the matter. There is no evidence whatsoever to show an intent to deprive the legislature
of this power. A reviewing court should strive "to assure itself and the public that
announcing rights not readily identifiable in [a c]onstitutions text involves much
more than the imposition of the Justices own choice of values." Bowers v.
Hardwick, 478 U.S. at 191. This court cannot substitute its own public policy
determination for that of the legislature.
The question of whether or not a third party is harmed by a consensual and private act
of oral or anal sex is a debate which has been ongoing for many years and is nothing which
this court needs to address. The legislature is within constitutional authority to
proscribe its commission. Any claim that private sexual conduct between consenting adults
is constitutionally insulated from state proscription is unsupportable. Bowers, 478
U.S. at 191. If an act of sodomy is truly consensual and private, it would be impractical
to enforce the statute against the participants, since both would be guilty of the crime
of sodomy and, consequently, there would be no victim to file charges and institute a
prosecution. See Perryman v. State, 12 S.E.2d 388 (Ga. App. 1 1940); Pruett v.
State, 463 S.W.2d 191, 193 (Tex. Crim. App. 1970). If the act takes place in private
and one of the participants files criminal charges against the other, it can be subject to
prosecution as a nonconsensual act. The prosecution against Smith was not initiated
because he was accused of engaging in private and consensual sex acts. To the contrary, he
was prosecuted only because the victim accused him of committing a forcible act against
her. Although the judge only found Smith guilty of receiving oral sex, the fact
nevertheless remains that the prosecution was initiated and pursued only because one of
the participants initially alleged, and subsequently testified under oath, that she did
not consent to the act.
More importantly, however, it would be irresponsible for this court to adopt the novel
proposition that a criminal statutes constitutionality depends upon whether anyone
other than the actual participants themselves are adversely affected by the proscribed
act. Presumably, under such a standard, the state could no longer enforce laws against
consensual incest, fornication, prostitution, drugs, etc. See Bowers. v Hardwick, 478 U.S.
at 195-96; See also Powell v. State, 510 S.E.2d 18, 30 (Ga. 1998)(Carley, J., dissenting).
By equating the general constitutional guarantee of "liberty" or
"privacy" to all Louisiana citizens with the right of each individual citizen to
engage in self-indulgent but self-contained acts of permissiveness, this court would be
calling into constitutional question any criminal statute which proscribes an act that, at
least to the satisfaction of a majority of this court, does not cause sufficient harm to
anyone other than the actual participants. For instance, the constitutionality of criminal
laws which forbid possession and use of certain drugs would become questionable. See
Bowers v. Hardwick, 478 U.S. at 195. There has never been any doubt that the legislature,
in the exercise of its police power, has authority to criminalize the commission of acts
which, without regard to the infliction of any other injury, are considered immoral.
Simply put, commission of what the legislature determines as an immoral act, even if
consensual and private, is an injury against society itself. The law "is constantly
based on notions of morality, and if all laws representing essentially moral choices are
to be invalidated under the Due Process Clause, the courts will be very busy indeed."
Powell v. State, 510 S.E.2d 18, 30 (Ga. 1998)(Carley, J., dissenting), (quoting Bowers
v. Hardwick, 478 U.S. at 196). See also Christensen v. State, 468 S.E.2d 188,
190 (Ga. 1996); State v. Walsh, 713 S.W.2d 508, 511-12 (Mo. 1986).
This court is not considering the wisdom of the law in question. This court is only
ruling that it should not, and constitutionally cannot, rule that La. Rev. Stat. 14:89
violates a constitutional right to privacy guaranteed by the Louisiana Constitution. The
Fourth Circuit erred by holding that the right of consenting adults to engage in private
non-commercial sexual activity, free from government interference, is protected by the
privacy clause of the Louisiana Constitution. This court has never recognized such a
right, and declines the invitation to do so today.
Separation of Powers under the Louisiana Constitution
"The responsibility of this Court. . . is to construe and enforce the Constitution
and laws of the [State] as they are not to legislate social policy on the basis of our own
personal inclinations." Evans v. Abney, 396 U.S. 435, 447 (1970). The issue is
not whether private and consensual acts of oral and anal sex should be legal or illegal in
Louisiana. That issue has been resolved by the legislature in enacting La. Rev. Stat.
14:89. Under this law, commission of unnatural carnal copulation, which has been
interpreted to include both oral and anal sex, is against the criminal law of Louisiana,
and performance of such an act in private between consenting adults is not exempted from
that statutory prohibition. This case does not require a determination of whether laws
against oral and anal sex, in general, are wise or desirable. No questions are raised
about the right or propriety of state legislative decisions repealing laws criminalizing
sexual acts. The issue presented is whether the Louisiana Constitution confers a
constitutional right to engage in consensual sexual acts of oral and anal intercourse, and
whether this prohibits the legislature from proscribing such conduct.
The Louisiana Constitution is the highest law by which the government of this state was
established. As such, our constitution is not be subject to judicial amendment to express
whatever a majority of this court happens to conclude at any given time is the more
enlightened viewpoint on a particular controversial issue. If our constitution can be
judicially amended in such a manner, that constitutes government by this court, rather
than government through a constitutional system of which this court is a separate and
equal branch. To hold otherwise would be to allow any and all disaffected groups unable to
obtain legislative redress need only convince a majority of this court that what they seek
is an implicit "right" afforded by the Louisiana Constitution. Our constitution
wisely provides for separation of powers, and authorizes the legislature to make public
policy determinations in this area. Under our constitution, therefore, the public policy
of Louisiana on the practice of oral and anal sex, is a matter within the power of the
legislature, not this court.
A violation of the criminal law of this state is not justified as an element of the
"liberty" or "privacy" guaranteed by this states constitution.
The freedom to violate criminal law is simply anarchy and, thus, the antithesis of an
ordered constitutional system.
Therefore, the only perceptible unconstitutionality in this case is that which would be
evident if this court would determine, by acting as social engineers rather than jurists,
and elevate our own personal notions of individual "liberty" over the collective
wisdom of the voters elected representatives belief. That belief has already
determined that a prescription on oral and anal sex, consensual or otherwise, is in
furtherance of the moral welfare of the public mind. Social engineering is not a valid
function of this court.
Neither the Louisiana nor United States Constitution empowers this court to second
guess the legislature in its heavy responsibility of weighing competing interests. We are
not asked to decide whether legislation is wise or best fulfills relevant social and
economic objectives that the state might ideally espouse. Courts do not rule on the social
wisdom of statutes nor their workability in practice. Everett v. Goldman, 359 So.
2d 1256, 1270 (La. 1978). If a crime or a penalty is not defined to reflect current
societal values, it is for legislature, not the courts, to reflect this change. It is not
a courts role to consider wisdom of the legislature in adopting a statute; it is a
courts province to determine only the applicability, legality, and constitutionality
of the statute. Progressive Sec. Ins. Co. v. Foster, 97- 2985 (La. 4/23/98), 711
So. 2d 675, 688; Soloco, Inc. v. Dupree, 97-1256 (La. 1/21/98), 707 So. 2d 12, 16.
Many critics of this law note that this court would not be alone in interpreting a
state constitutional right to privacy so broad as to include engaging in oral and anal
sex. What this fails to acknowledge, however, is that most states in which consensual
sodomy is no longer a crime achieved that result "by legislative repeal of their laws
criminalizing sodomy." Powell v. State, 510 S.E.2d 18, 32 (Ga. 1998) (Carley,
J., dissenting) (quoting Christensen v. State, 468 S.E.2d 188, 190 (Ga.1996)). In
the exercise of its police power, the legislature has determined that the long-recognized
ban on oral and anal sex should remain in place.
The defense relies upon numerous cases from other jurisdictions, in particular, Powell
v. State, 510 S.E.2d 18 (Ga. 1998), to support the proposition that La. Rev. Stat.
14:89 is unconstitutional. This court does take
notice that Powell v. State was decided only two years after the Georgia Supreme
Court ruled that the Georgia sodomy law was constitutional in Christensen v. State,
468 S.E.2d 188 (Ga. 1996). We are not bound by foreign courts and consider them only for
their persuasiveness. We decline to follow the Georgia Supreme Court, because we believe,
to borrow from Mr. Justice Black, "Whether the legislature takes for its textbook
[John Stuart Mill, Thomas Acquinas or Lord
Devlin] or some other is no concern of
ours.***[R]elief, if any be needed, lies not 12 13 with us but with the [General
Assembly]." Ferguson v. Skrupa, 372 U.S. 726, 732 (1963).
This court is not inclined, and does not intend, to discover new constitutional rights
in the Louisiana Constitution. Judge-made constitutional law having little or no basis in
the constitution is dangerous and questions the legitimacy of the court. This was
illustrated by the conflict between the President and the United States Supreme Court
during the Lochner era. Our
concern is equally applicable to a conflict between this court the and state legislature.
There should be resistance by courts to redefine categories of rights deemed fundamental. Bowers,
478 U.S. at 195.
Our constitution is not intended to embody a particular sociological theory. Rather,
"[i]t is made for people of fundamentally differing views, and the accident of our
finding certain opinions natural and familiar or novel and even shocking ought not to
conclude our judgment upon the question whether [the state's position] embodying them
conflict[s] with the [c]onstitution...." Lochner v. New York, 198 U.S. 45, 76
(1905) (Holmes, J., dissenting).
[I]t is not a proper function for any court to judicially repeal laws on purely
sociological considerations--[Powell] would do better to address. . . the General Assembly
for it to determine if modern mores require the alteration or expunction of sodomy
Griffith v. State, 504 S.W.2d 324, 326 (Mo. App. 1974). Because of the
longstanding prohibition against oral and anal sex, the judicial discovery of a
constitutional right to engage in oral and anal sex, not withstanding this legislative
ban, would be based upon a serious misinterpretation of the Louisiana Constitution and is
completely contrary to the constitutional principle of separation of powers.
CONSTITUTIONALITY OF LA. REV. STAT. 14:89(A)(2)
A review of the records lodged in the related cases
reveals the erroneous impression that the 16 Fourth Circuits opinion in Smith somehow
overruled this courts decision in State v. Baxley, 94-2982 (La. 5/22/95), 656
So. 2d 973, or at least supplanted the rationale of Baxley by holding that oral sex
is not unnatural sex.
However, these rulings, patterned after the Fourth Circuits opinion in Smith, are
both misplaced and premature. None of the judgments granting the Motions to Quash set
forth plausible reasons for departing from the controlling precedent of Baxley. The
trial courts in the instant cases were misguided in their attempts to find the
solicitation provision of La. Rev. Stat. 14:89(A)(2) unconstitutional.
First, after evidentiary hearings in State v. Baron, the judge issued a
five-page judgment explicating his view that La. Rev. Stat. 14:89(A)(2) violates the Equal
Protection Clauses of the state and federal constitutions. Next, State v. Varnado contains
a written statement of reasons, explaining subsequent grants of Motions to Quash in other
cases arising under La. Rev. Stat. 14:89(A)(2), explaining why the statute violates the
Eighth Amendment. Finally, although no written reasons in State v. Garrett, were
issued the remarks from the bench reflect agreement that the legislatures provision
of different penalties for what he believes to be equivalent sex acts is unconstitutional.
Although decided under different constitutional provisions, the judgments in these
cases share a common analytical approach premised on the belief that, given contemporary
sexual mores, there is no difference in the "naturalness" (or
"unnaturalness") of oral sex, anal sex, and vaginal sex. According to this view,
the stark differences in the penalties provided by the legislature for soliciting vaginal
sex (i.e., prostitution, a six-month misdemeanor offense defined by La. Rev. Stat. 18:81),
as opposed to solicitation of oral or anal sex (a five-year felony offense punished by La.
Rev. Stat. 14:89(A)(2)), in reality concern the same or equivalent sexual acts and
therefore represent wholly arbitrary and capricious classifications.
Nevertheless, as a matter of law, the trial courts judgments are invalid because
they erroneously cite, and actually even misapply the Fourth Circuits opinion in Smith,
which is now vacated by this opinion, for the proposition that because the Louisiana
legislature may not constitutionally declare oral sex as unnatural, the legislature may
not punish solicitation of that act in a commercial context. This reason is in direct
conflict with binding precedent set by Baxleys explicit recognition of the
legislatures prerogative to determine "that solicitation for unnatural
carnal copulation is more offensive than solicitation for indiscriminate
sexual intercourse [i.e. prostitution]." Baxley, 94-2982, p.11, 656 So.
2d at 980.
As the States brief aptly observes:
Even assuming that the public morality point advanced by the trial court has any
validity, Smith, at best, only arguably suggests that public morality
considerations do not suffice as a justification, under the Privacy Clause, to prohibit
consenting adults from engaging in private non-commercial oral sex. The public morality
considerations noted in Smith were NOT intended to be the basis for concluding that
oral and vaginal sex are, in effect, the same conduct. The Smith court clearly
intended to suggest that the policing of public morals was an insufficient reason to
condemn the private, non-commercial participation in not only vaginal sex (intercourse),
but oral sex as well. There is no reasonable interpretation of the Smith decision
which even arguably suggests that oral and vaginal sex are in effect the same conduct.
(Emphasis in original).
Even assuming, arguendo, that the Fourth Circuit opinion in Smith would
still be good law, the same arguments made for privacy rights of non-commercial,
consensual sex are simply not as persuasive for commercial sex acts.
EQUAL PROTECTION/EXCESSIVE PUNISHMENT
The State first argues that the trial courts erred by finding La. Rev. Stat.
14:89(A)(2) unconstitutional under Louisianas Equal Protection clause. Specifically, the trial courts concluded no rational basis
exists for imposing harsher penalties for solicitation of crimes against nature than for
solicitation of prostitution.
A first offense solicitation of crime against nature conviction under La. Rev. Stat.
14:89(A)(2) is a felony and subjects the defendant to a fine of not more than $2000 or a
prison term of not more than five years, or both. In contrast, a first offense
solicitation of prostitution conviction under La. Rev. Stat. 14:82 is a misdemeanor and
subjects the defendant to a fine of not more than $500 or imprisonment for not more than
six months, or both.
Although the trial courts emphasize out that crime against nature convictions are
punished harsher than prostitution convictions, their determination that an equal
protection violation results from the two statutes overlapping lacks merit. This court in Neal,
500 So. 2d 374 (La. 1987), addressed the constitutionality of solicitation for
prostitution and solicitation for crime against nature. In a ruling similar to those
issued by the trial courts in the instant cases, the trial court in Neal declared
La. Rev. Stat. 14:89(A)(2) unconstitutional because of "the fact that the prosecutor
can pick any one of four statutes and not only prosecute but pick the penalty depending on
how he feels about an individual where the same exact activity fits every statute." Neal,
500 So. 2d at 376. In reversing the trial court, this court held that even assuming the
two offenses totally overlapped, we "are not aware of how this statutory arrangement
conflicts with any constitutional principle." Id. at 378. This court further
noted that "the policy of our criminal code recognizes that there will be overlapping
in the code sections and other statutes and expressly provides that in such cases
prosecution may proceed under either provision." Id.
More specifically, under La. Rev. Stat. 14:4, when the offenders alleged conduct
violates two criminal statutes, the prosecution may proceed under either provision at the
discretion of the district attorney. See e.g., State v. Juluke, 374
So. 2d 1259 (La. 1979) (district attorney has discretion to choose between prosecuting a
defendant for forgery, a felony, or unauthorized use of a credit card, a misdemeanor); State
v. Smith, 597 So. 2d 1151 (La. App. 1 Cir.), writ denied, 599
So. 2d 311 st (La. 1992) (district attorney has power to prosecute under perjury, a
five-year felony, or under a more specific municipal misdemeanor statute pertaining to
misleading administrative agencies).
In Baxley, we reiterated that "the punishment of one type of conduct more
severely than another similar type of conduct is not, of itself, an equal protection
violation." Baxley, 95-0575, p. 9, 656 So. 2d at 979. While the
constitutional challenge to Baxley involved whether La. Rev. Stat. 14:89(A)(2)
arbitrarily and discriminatorily punished homosexuals more than heterosexuals, (based on a
comparison of the penalty provisions of the crime against nature statute and the
prostitution statute), the holding equally applies to the instant case; the different
punishment of two types of different conduct does not constitute an equal protection
CRUEL AND UNUSUAL PUNISHMENT
In holding the sentencing provision unconstitutionally excessive, the trial judges
apparently agreed with the defendants claim that the maximum penalty of five years
for violating La. Rev. Stat. 14:89 (A)(2) is grossly out of proportion to the severity of
the crime when compared to the maximum penalty of six months for a first time violation of
La. Rev. Stat. 14:82, the prostitution statute.
We disagreed with this in Baxley, 94-2982, p. 10, 656 So. 2d at 980 and disagree
with this again today.
This comparison of alleged excessiveness is relative to the constitutional issue, but
is not dispositive of it. In State v. Telsee, 425 So. 2d 1251 (La. 1983), this
court outlined several factors which are useful in determining whether a sentence, by its
excessive length or severity, is grossly out of proportion to the underlying crime. This
analysis is cumulative and focuses on a combination of these factors. Id. at 1253.
These include the nature of the offense and the offender, a comparison of the punishment
with sentences imposed for similar crimes, the legislative purpose behind the punishment,
a comparison of the punishment with sentences imposed for similar crimes, and a comparison
of the punishment provided for this crime in other jurisdictions. Id. at 1253-54.
We do not believe anything in La. Rev. Stat. 14:89(A)(2) constitutes a violation of equal
protection or an excessive punishment. Simply put, Baxley is still the applicable
rule for this issue, and this court hereby reaffirms Baxley and reviews the
consolidated cases in light of it.
Louisianas constitution, unlike its federal counterpart, explicitly prohibits
excessive sentences. This court has recently
stated "[t]he deliberate inclusion by the redactors of the Constitution of a
prohibition against excessive as well as cruel and unusual punishment broadens
the duty of this court to review the sentencing aspects of criminal statutes." State
v. Baxley, 656 So. 2d at 977, quoting State v. Goode, 380 So. 2d 1361, 1363
(La. 1980). Our constitutions explicit protection against excessive punishment
"permits us to determine both whether the range of sentences authorized by a criminal
statute is excessive. . .and whether the sentence of a particular offender is excessive,
though within the statutorily prescribed range." Baxley, 656 So. 2d at 977
(quoting State v. Guajardo, 428 So. 2d 468, 472 (La. 1983)). Accordingly, the
defendants in the consolidated cases, having been charged with violating the crime against
nature statute, have standing to challenge, before trial, the constitutionality of the
sentencing provisions of this statute as facially excessive. Baxley, 656 So. 2d at
We will consider whether the sentencing provision applicable to La. Rev. Stat.
14:89(A)(2) facially violates the state constitutional prohibition against excessive
punishment contained in La. Const. art. I § 20. "A punishment is constitutionally
excessive if it makes no measurable contribution to acceptable goals of punishment and is
nothing more than the purposeless imposition of pain and suffering and is grossly out of
proportion to the severity of the crime." Baxley, 656 So. 2d at 979 (quoting State
v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993)). "A sentence is grossly
disproportionate if, when the crime and punishment are considered in light of the harm
done to society, it shocks the sense of justice." Baxley, 656 So. 2d at 979,
(quoting State v. Lobato, 603 So. 2d 739, 751 (La. 1992)). It is a well established
principle that the legislature has the unique responsibility to define criminal conduct
and to provide for the penalties to be imposed against persons engaged in such conduct. Baxley,
656 So. 2d at 979; Dorthey, 623 So. 2d at 1278; State v. Woljar, 477 So.
2d 80, 81-82 (La. 1985). The penalties provided by the legislature reflect the degree to
which the criminal conduct affronts society. State v. Ryans, 513 So. 2d 386, 387
(La. App. 4 Cir. 1987), writ denied, 516 So. 2d 366 (La. 1988). Courts must apply
these penalties unless they are found to be unconstitutional. Dorthey, 623 So.2d at
In State v. Telsee, 425 So. 2d 1251 (La. 1983), this court outlined several
factors which are useful in determining whether a sentence, by its excessive length or
severity, is grossly out of proportion to the underlying crime. This analysis is
cumulative and focuses on a combination of these factors. Telsee, 425 So. 2d at
1253. These factors include the nature of the offense and the offender, a comparison of
the punishment with sentences imposed for similar crimes, the legislative purpose behind
the punishment, and a comparison of the punishment provided for this crime in other
jurisdictions. Id. at 1253-54.
At issue is not only the term of imprisonment provided by the legislature for the
offense, but also its classification of crime against nature as a felony, in comparison
with the misdemeanor status of prostitution. An attack on the sentencing provision of La.
Rev. Stat. 14:89, when compared with the prostitution statute, was addressed in State
v. Ryans, 513 So. 2d 386 (La. App. 4 Cir. 1987), writ denied, 516 So. 2d 366
(La. 1988). In Ryans, the defendant was convicted of solicitation to commit crime
against nature and appealed her sentence as "disproportionate to the severity of the
crime." Id. at 387. Similar to the arguments raised by the defendants in the
instant case, the defendant in Ryans premised her claim of disproportionality on a
comparison with the penalties for other sex offenses, particularly La. Rev. Stat. 14:82,
prostitution. Id. Despite the disparity in sentencing with respect to La. Rev.
Stat. 14:89 and La. Rev. Stat. 14:82, the appellate court in Ryans held that the
offense of solicitation to commit crime against nature was not so similar to the crime of
solicitation for prostitution to require similar penalties.
The appeals court in Ryans further held that the legislature has the prerogative
and duty to define penalties and the "penalties provided by the legislature reflect
the degree to which the criminal conduct affronts society." Id. The appeals
court noted that the legislature clearly decided to distinguish between indiscriminate
sexual intercourse (prostitution) and unnatural carnal copulation (crime against nature)
as a reflection of the legislatures belief that society is much more affronted by
unnatural carnal copulation than by prostitution. Id.
Although the defendant in Ryans violated the provisions of both La. Rev. Stat.
14:89 and La. Rev. Stat. 14:82, the court held the district attorney had discretion to
prosecute under either statute, see La. Rev. Stat. 14:4, and absent an abuse of
discretion refused to interfere. Moreover, the Fourth Circuit reasoned that if current
social mores do not establish as unnatural the act of oral sex, and therefore more
offensive than indiscriminate sexual intercourse, it is for the legislature, not the
courts, to reflect this change in attitudes by redefining criminal conduct or changing the
penalties. Ryans, 513 So. 2d at 388.
Citing Ryans, this court in Baxley, 656 So. 2d at 980, again found that
the sentencing provision of La. Rev. Stat. 14:89(A)(2) was not unconstitutionally
excessive on its face. We further noted that La. Rev. Stat. 14:89(A)(2) imposes no
mandatory minimum prison sentence or fine. The instant statute requires only that the
sentence not exceed five years and that the fine not exceed $2000. Id.
If we were to find the district courts rationale to be credible, we would be hard
pressed to explain why different grades of rape with different punishments are valid, and
even more so, why the legislature can punish distribution of heroin (La. Rev. Stat.
40:966(B)(1)--life imprisonment) so much more harshly than distribution of cocaine (La.
Rev. Stat. 40:967(B)(4)(b)-- five to thirty years) or marijuana (La. Rev. Stat.
40:966(B)(2)-- five to thirty years). All involve the same act, distribution of narcotics.
The last two examples illustrate the relevant discussion for this issue: in enacting
La. Rev. Stat. 14:89(A)(2) and 14:82, the Louisiana Legislature exercised its collective
wisdom by punishing different types of proscribed conduct differently. The crime against
nature statute and the prostitution statute do not necessarily proscribe the same conduct.
Baxley, 656 So. 2d at 980. Nothing in our constitution "requires a close
similarity or proportionality in penalty soley because both crimes deal with sexual
immorality." Id. (quoting Ryans, 513 So. 2d at 388). Furthermore, the
legislature may declare one form of conduct more offensive to the publics morals
than another, and punish that conduct more severely. Baxley, 656 So. 2d at 980.
Nothing prevents the legislature from determining that solicitation of "unnatural
carnal copulation" is more offensive than solicitation of "indiscriminate sexual
intercourse." Id. It is also significant that La. Rev. Stat. 14:89(A)(2)
imposes no mandatory minimum prison sentence or fine. Id. The statute requires only
that the sentence not exceed five years and the fine not exceed $2000. If the penalty is
not reflective of social norms, it is for the legislature, not the courts, to express this
change. Id. For all of these reasons, many of which were previously discussed in
detail in Baxley, we again hold that the sentencing provision applicable to La.
Rev. Stat. 14:89(A)(2) is not unconstitutionally excessive on its face, that it does not
pose an equal protection violation, and that the trial judges erred in holding otherwise.
In light of the faulty rationale underlying the trial courts rulings, the
States arguments have merit given this courts jurisprudence upholding the
constitutionality of La. Rev. Stat. 14:89(A)(2). Baxley is hereby reaffirmed, and
remains the binding precedent in Louisiana.
The Fourth Circuit Court of Appeal opinion reversing the conviction of Mitchell Smith
is hereby vacated in its entirety. The conviction and sentence of Mitchell Smith ordered
by the trial court are hereby reinstated. All of the judgments maintaining Motions to
Quash in the consolidated cases are hereby vacated as violative of Baxley, which
remains the controlling law in the Louisiana jurisprudence. The consolidated cases are
remanded to the district court for further proceedings according to law and consistent
with the views expressed herein. If a defendant seeks to quash the bill of information on
other constitutional grounds, in order to avoid further piecemeal litigation, the trial
judges are instructed to rule on all constitutional claims before the courts at that time.
* Knoll, J. not on panel. Rule IV, Part 2,
 Art. I, § § 2, 13 of the 1974 Louisiana Constitution; State
v. Azar, 539 So. 2d 1222 (La. 1989), cert denied, Azar v. Louisiana, 493 U.S.
823 (1989); State v. Powell, 515 So. 2d 1085 (La. 1987); State v. Neal, 500
So. 2d 374 (La. 1987); State v. Pierre, 500 So. 2d 382 (La. 1987); State v.
Lindsey, 310 So. 2d 89 (La. 1975); State v. McCoy, 337 So. 2d 192 (La. 1976); State v. Bonanno, 163 So. 2d 72 (La. 1964).
 The Statute has also withstood constitutional challenges
on the basis of overbreadth. As this court noted in Neal, challenges for
overbreadth generally are not appropriate "when the impermissible applications of the
challenged statute affect conduct rather than speech." Broadrick v. Oklahoma,
413 U.S. 601 (1973); Neal, 500 So. 2d at 377.
 With regard specifically to
sodomy, the United States Supreme Court in Bowers v. Hardwick traced these ancient
roots as follows:
BowerBowers, 478 U.S. at 196-97 (Burger, J.,
[T]he proscriptions against sodomy have very ancient roots. Decisions of
individuals relating to homosexual conduct have been subject to state intervention
throughout the history of Western Civilization. Condemnation of those practices is firmly
rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital
crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey,
Homosexuality and the Western Christian Tradition 70-81 (1975). During the English
Reformation when powers of the ecclesiastical courts were transferred to the Kings
Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch 6.
Blackstone described the infamous crime against nature as an offense of
deeper malignity than rape, a heinous act the very mention of which is a
disgrace to human nature, and a crime not fit to be named. 4 W.
Blackstone, Commentaries *215. The common law of England, including its prohibition of
sodomy, [eventually] became the received [criminal] law of [Louisiana] and the [thirteen]
 See Ala. Code §§ 13A-6-63; 13A-6-64; 13A-6-65
(Michie 1993); Ariz. Rev. Stat. Ann. §§ 13-1411; 13-1412 (West 1993); Ark. Code Ann. §
5-14-122 (Michie 1993); Fla. Stat. Ann. § 800.02 (West 1993); Idaho Code § 18-6605
(Michie 1993); Kan. Stat. Ann. § 21-3505 (1989); La. Rev. Stat. Ann. § 14:89 (West
1994); Mass. Gen. Laws Ann. ch. 272, § 34 (West 1993); Minn. Stat. Ann. § 609.293 (West
1987); Miss. Code Ann. § 97-29-59 (1972); Mo. Ann. Stat. § 566.090 (Vernon 1979); N.C.
Gen. Stat. § 14-177 (1986); Okla. Stat. Ann. Tit. 21, § 886 (West 1983); S.C. Code Ann.
§ 16-15-120 (Law. Co-op. 1985); Tex. Penal Code Ann. §§ 21.01(1), 21.06 (West 1989);
Utah Code Ann. § 76-5-403 (1978); Va. Code Ann. § 18.2-361 (Michie 1988). The statutes
enacted by Arkansas, Kansas, Oklahoma, and Texas apply only to consensual sex between same
 The most recent
Louisiana Constitution was enacted in 1974.
 See, generally, CLARK & MARSHALL, A TREATISE
ON THE LAW OF CRIMES, § 11.07 (Callaghan & Co., 1967); PERKINS, ON CRIMINAL LAW, pp.
398-392 (The Foundation Press, 1969); 4 Bl. Comm. § 216; 1 Hale P.C. c.
63; 3 Coke Inst. § 58.
 25 Hen. VIII, ch 6 (1533);
repealed by 1 Mary ch 1 (1553); revived by 5 Eliz. I, ch 17 (1562).
 In 1805, the states first crime against nature law was
enacted as Orleans Laws, Chapter L., § 2 and Act No. 50 § 2, 1805 La. Acts 46. This law
 26 Laws of the La.
Territory, Act. L, § 33.
 The current
Louisiana Constitution was ratified in 1974, approximately 170 years after the Territory
of Orleans enacted a prohibition against crime against nature and well over 100 years
after statewide statutes were enacted. Even if we would consider the Louisiana
Constitution of 1921 instead of 1974, there is no way that an argument could be made that
laws prohibiting crimes against nature were enacted after the Louisiana Constitution.
Every person who shall hereafter be duly convicted of...the detestable and abominable
crime against nature, committed with mankind or beast, shall suffer imprisonment at hard
labor for life.
 In addition to Powell v. State, 510 S.E.2d 18 (Ga.
1998),the Fourth Circuit in this case also relied upon two other cases from foreign
jurisdictions:,Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992) and Campbell v.
Sundquist, 926 S.W.2d 250 (Tenn. App. 1996). It should be noted that the Kentucky case
relied on language in the Kentucky Constitution which has no counterpart in the Louisiana
Constitution and which, if literally or broadly applied, as the Wasson court seemed
to be willing to do, would be a formula for anarchy. See Sawatzky v. City of Oklahoma
City, 906 P.2d 785, 787 n. 9 (Okla. Crim. App. 1995), which rejected the Kentucky
decision due to the uniqueness of the Kentucy constitution. It should also be noted that
the Campbell case in Tennessee is not a decision of that states highest
court, but only of one intermediate court, with other state courts in Tennessee in
apparent disagreement with it. See, for example, Smith v. State, 6 S.W.3d
512 (Tenn. Crim. App. 1999). Footnote eight in Smith v.State, 6 S.W.3d 512 states
that Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. App. 1996) ignores Justice
Scalias warning regarding extending the scope of an asserted "fundamental
right." Wasson and Campbell suffer from the same faulty reasoning as Powell.
 Aquinas, Summa Theologica, Q. 96, article 2:
"Now human law is framed for a number of human beings, the majority of whom are not
perfect in virtue. Wherefore human law does not forbid all vices, from which the virtuous
abstain, but only the more grievous vices***and chiefly those that are to the hurt of others***."
 See, DEVLIN, THE ENFORCEMENT OF MORALS (1965).
 Mr. Justice Blacks opinion in Ferguson
actually stated that whether the legislature took as its textbook Adam Smith, Herbert
Spencer or Lord Keynes was no concern to the United States Supreme Court. The same premise
which applied to allow the legislative bodies to select economic regulations of their
choice also applies to allow them to select moral regulations of their choice.
 Lochner v. New York,
198 U.S. 45 (1905). Lochner is often cited as a time when the United States Supreme
Court substituted its judgment for the United States Congress.
 State v. Murphy, 99-KA-2014; State v.
Garrett, 99-KA-2015; State v. Smith 99-KA-2017; State v. Varnado,
99-KA-2019; State v. Harris, 99-KA-2020; State v. Molett, 99-KA-2082; State v. Woods, 99-KA-2083; State v. Baron, 99-KA-2094.
 The trial court in Baron
commented that La. Rev. Stat. 14:89(A)(2) violated the Equal Protection Clause of the
Fourteenth Amendment of the U. S. Constitution; however, the trial court did not provide
reasons in support of this finding. Instead, the trial court based its reasons for
granting the Motion to Quash on state equal protection grounds. The Motions to Quash were
granted in State v. Woods, State v. Harris, State v. Murphy, State
v. Molett, State v. Junius Smith, State v. Varnado because the trial judges
believed there were Equal Protection Clause violations.
 State v. Garrett and State v. Varnado specifically
held that 14:89(A)(2) was an excessive punishment. This was erroneous and completely
contrary to Baxley.
 La. Const. art.
I, § 20 provides, in pertinent part: "No law shall subject any person to euthanasia,
to torture, or to cruel, or unusual punishment."
 Some states that prohibit crime against nature
by consenting adults punish the offense as a misdemeanor with minimal potential prison
time. See, e.g., Ala. Code §§ 13A-6-63; 13A-6-64; 13A-6-65 (Michie 1993);
Ariz. Rev. Stat. Ann. §§13-1411; 13-1412 (West 1993); Ark. Code Ann. § 5-14-122 (Michie
1993); Fla. Stat. Ann. § 800.02 (West 1993); Kan. Stat. Ann. §21-3505 (1989); Minn.
Stat. Ann. § 609.293 (West 1987); Mo. Ann. Stat. § 566.090 (Vernon 1979); Tex. Penal
Code Ann. §§21.01(1), 21.06 (West 1989); Utah Code Ann. § 76-5-403 (1978). Other states
punish the offense as a felony with more potential prison time than Louisianas
statute. See, e.g., Mass. Gen. Laws Ann. ch. 272, § 34 (West 1993) (maximum
20 year imprisonment); Miss. Code Ann. § 97-29-59 (1972)(maximum 10 year imprisonment);
Okla. Stat. Ann. Tit. 21, § 886 (West 1983) (maximum 10 year imprisonment).
Other parts of the decision