Judge Extends Ruling in Sodomy Case to Minnesota Adults
Minneapolis Star
Tribune, July 3, 2001
425 Portland Avenue, Minneapolis, MN 55408
Fax: 612-673-4359
Email: opinion@startribune.com
By Pam Louwagie and Margaret Zack / Star Tribune
A court order striking down the state’s law that prohibits oral and anal
sex now applies to all Minnesota adults under a ruling issued by a Hennepin
County judge Monday.
The plaintiffs’ attorneys said that means consenting adults who engage in
the sexual acts in private, noncommercial settings would be protected from
prosecution.
District Judge Delila Pierce gave class-action status to a case in which
eight plaintiffs sued the state challenging the sodomy law. In May, Pierce
found the law was unconstitutional because it violated rights to privacy.
Monday’s order gives her ruling statewide effect, attorneys for the
plaintiffs contend.
"It’s a great day," attorney Timothy Branson said. If the
attorney general doesn’t appeal Pierce’s ruling, he said, "the sodomy
statute for private consensual acts is dead letter for all time."
A spokeswoman for Attorney General Mike Hatch’s office said only that
officials were discussing the order with the governor’s staff and
considering their options.
The law, on the books since the 19th century, made oral and anal sex
illegal even when it’s private and between consenting adults, such as
married couples.
With the backing of the Minnesota Civil Liberties Union, eight plaintiffs
sued the state, the governor and the attorney general to challenge the law.
The plaintiffs included a lesbian attorney who argued she could have faced
eviction from her home because her lease prohibits illegal activity, a
quadriplegic married man whose only forms of sexual intimacy are unlawful, and
a married Minneapolis teacher who could lose his license if he were found to
be breaking state law.
Pierce, in a 13-page ruling issued Monday, said the plaintiffs represented
a "broad spectrum" who engage in the conduct, and were adequate
representatives for class-action status.
Attorneys for the state had argued that there was no need for class-action
status because the original ruling was against the state and wouldn’t have
allowed the state to enforce the law, anyway. If plaintiffs wanted to make
sure nobody was prosecuted under the law, state attorneys said, they should
have sued all county and city attorneys.
Branson said that wouldn’t have been practical.
Pierce could have ordered that all city and county attorneys not prosecute
under the sodomy law, which would have covered all Minnesotans.
But because the attorney general objected to that approach, the plaintiffs
obtained the same result by seeking class certification, Branson said. What is
important is that all Minnesotans, not just the eight named plaintiffs, are
safe from prosecution, he said.
He said he didn’t know how many Minnesotans the class would contain
because past and future conduct are also included.
There have been maybe 75 convictions in 25 years based on the sodomy
statute, he said. Often the individuals charged plead to a different crime, he
said.
Teresa Nelson of the Minnesota Civil Liberties Union, which brought the
lawsuit, called Pierce’s ruling very significant.
"We have 100 percent assurance that the law can’t be used against
individuals engaged in consensual acts in private," she said. "I can’t
stress enough this is not about nonconsensual sex."
Joni Thome of the Minnesota Lavender Bar Association for lesbian, gay,
bisexual and transgendered lawyers and law students said the organization was
happy with Pierce’s decision.
Jordan Lorence, an attorney who has done legal work on behalf of the
Minnesota Family Council, said he thinks declarations concerning the broad
impact of the ruling are questionable
"I’m not sure an appellate court would say local prosecutors have
been covered," he said.
Attorney Greg Wersal, who accused Hatch of failing to present an adequate
defense in the case and helped lead an unsuccessful bid to recall him, said he
hopes Hatch will appeal the case now.
"I think that clearly this is an issue that should be in front of the
Minnesota Supreme Court, not decided by some district court judge,"
Wersal said.
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