Anti-Gay Bias Alleged in Md. Sex Law
ACLU Suit Demands Equal Treatment Under Criminal Statutes
February 6, 1998
1150 15th Street NW, Washington, DC 20071
By Peter S. Goodman
Washington Post Staff Writer
The American Civil Liberties Union filed a
class-action lawsuit yesterday in Baltimore Circuit Court, challenging a Maryland law that
makes homosexual oral sex a criminal act.
Under Maryland law, oral sex is legal between a man and a woman in a consensual,
private encounter in which no money changes hands. But when people of the same sex engage
in the same act, they are committing a felony punishable by up to 10 years in prison.
The ACLU filed the suit on behalf of five gay men and lesbians, who say the law
violates their equal protection and privacy rights under the state and federal
constitutions because it makes them criminals for engaging in behavior that is legal for
Catherine Brennan, a Baltimore lawyer and one of the plaintiffs, said the law
reinforces traditional views that homosexual relationships are morally wrong.
"People use this law to justify bashing and violence against us," she said.
"It allows non-gays who don't like us to demonize us as criminals."
The ACLU became interested in the case when it was contacted by Stephen B. Mercer, an
attorney for an Anne Arundel County man who was arrested for allegedly propositioning an
undercover police officer. According to Mercer, the man merely discussed oral sex with the
officer, and not for money. They were on their way to the man's apartment when the officer
"But for the fact it was two members of the same sex, it would have been lawful
behavior," Mercer said.
The man was later acquitted, but a local newspaper published a story on his arrest. A
co-worker then plastered copies of the article on the walls of their office, leading to
harassment from other colleagues, Mercer said. The man would have been a plaintiff in the
ACLU suit, but he died recently.
For several months, Anne Arundel police have conducted regular sweeps in and around an
adult bookstore in Annapolis that police say is the scene of frequent illegal sexual
activity. Dozens of men have been charged with soliciting a prostitute or exposing
themselves, police say. Others have been charged for seeking out other men for sex, the
ACLU maintains, adding that men have been arrested in similar circumstances in Baltimore
and in Frederick County.
One of the plaintiffs in the suit filed yesterday, identified as John Doe, was arrested
in Anne Arundel "simply because he agreed to go home with an undercover male
officer," Sullivan said. The man, a federal employee, had difficulty obtaining
security clearance when he was promoted recently, Sullivan said.
The four other plaintiffs have not been arrested, but they contend that the law
threatens them because they are homosexual. One plaintiff, Bruce Williams, a member of the
Takoma Park City Council, would have to resign his office if he were arrested under the
law, the ACLU said. Brennan and Lawrence Jacobs, a Montgomery County lawyer and a
plaintiff in the suit, could lose their licenses to practice law.
Besides Maryland, five other states -- Arkansas, Kansas, Missouri, Oklahoma and Texas
-- allow heterosexuals to engage in oral sex but criminalize oral sex between homosexuals.
The ACLU recently filed a similar challenge in Kansas, and the Lambda Legal Defense and
Education Fund, a gay rights group, has filed suit to have the Arkansas law overturned.
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