Last edited: February 14, 2005

Law Barring Same-Sex Soliciting Tossed Out

Plain Dealer, May 16, 2002
1801 Superior Ave., Cleveland Ohio 44114
Fax: 216-999-6209

By T.C. Brown, Plain Dealer Bureau

Columbus—It’s no longer against the law in Ohio for members of the same gender to publicly ask for sex from each other.

A unanimous Ohio Supreme Court yesterday struck down the 28-year-old importuning law. The court ruled in a 1999 Ashtabula case in which a man in a car offended a jogger by yelling numerous sexual propositions and telling him he was "hot and sexy."

The jogger reported Eric Thompson of Jefferson to police. Thompson was found guilty of importuning and sentenced to 180 days in jail.

The law, a misdemeanor, prohibited members of the same sex from asking for sex "when the offender knows such solicitation is offensive to the other person, or is reckless in that regard." The Supreme Court’s ruling reversed a decision it made in the late 1970s when it said the law was constitutional.

Members of the gay and lesbian community applauded the ruling, saying that police undercover stings for solicitation should cease.

Ohio justices split over the reasons they believe the law violates the equal-protection clauses of the U.S. and Ohio constitutions. The majority, in an opinion written by Justice Deborah Cook, said the decision was not based on sexual orientation but on the content of speech. Cook objected to the statute because it outlaws same-sex solicitations but does not prohibit unwanted offensive sexual advances between members of the opposite sex.

The law "prohibits speech because of the content expressed in that communication," Cook wrote.

Justice Paul Pfeifer concurred but took a different approach. He said the law was intended to restrict homosexual activity, not speech.

"There is no rational reason for the state to treat people who seek to engage in homosexual activity as criminals when it does not treat people who seek to engage in heterosexual activity as criminal," Pfeifer wrote.

Linda Malicki, director of Cleveland’s Lesbian/Gay Community Service Center, said the decision was important in establishing equality of treatment under the law. Heather Sawyer, chief counsel for Lambda Legal in Chicago, a group that promotes gay civil rights, said the law was being actively enforced against homosexuals.

A Cleveland man was arrested in November 1999 when, according to prosecutors, he peeked under a bathroom stall at Cleveland State University and asked a student for sex. His conviction was thrown out by the 8th Ohio District Court of Appeals.

"This was not a law just sitting around on the books," Sawyer said. "This means those charges, if not cases, have to be abandoned."

The ruling was welcomed in other circles, but for different reasons. David Langdon, a Cincinnati lawyer, said he has been asked by Cincinnati-based Citizens for Community Values to draft legislation similar to a Texas law that would outlaw sexual relations between same-sex couples. Langdon helped draft a bill banning same-sex marriages that is now in the Ohio Senate.

Langdon said yesterday’s ruling, which he called "an excellent decision,"dealt only with the content of speech, not with actual sexual behavior, pointing to the need for a law prohibiting homosexual sodomy.

"We had previously talked about the need for such a law in Ohio, and this decision has perhaps reinvigorated us to this end," he said.

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