S.C. Laws Used to Discriminate Against Gays
March 22, 2003
By Ed Madden
Later this month, when the U.S. Supreme Court considers a
Texas law criminalizing consensual sex, South Carolina’s sex laws must also
come under review. South Carolina’s law criminalizes certain sexual
practices for straight and gay people alike. If the court strikes down the
Texas law, justices will confirm what many have long known: Sodomy laws are
unnecessary invasions of privacy, and they are used as a license for
In Lawrence and
Garner v. Texas, the Supreme Court has been asked to consider a Texas
law criminalizing gay and lesbian sex. John Lawrence and Tyron Garner were
arrested in Houston after officers responding to a false burglary call found
the two engaged in consensual sex in the privacy of Lawrence’s home. The two
were arrested, forced to spend the night in jail and fined $200. They were
frightened and humiliated, treated as criminals.
Lambda Legal, the organization challenging the law,
argues that the Texas law violates two fundamental rights of American
citizens: the right to privacy and the right to equal protection.
Most states do not criminalize consensual adult sexual
relations. However, 13 states still have sodomy laws, and in nine, including
South Carolina, the law applies to both same-sex and opposite-sex partners.
These laws criminalize sexual behavior between consenting
adults, allowing governments to intrude into the very privacy of our
bedrooms—sometimes literally, as the Texas case shows.
Even when states equally criminalize gay and straight
sexual relationships, the laws are usually applied unequally. More
importantly, the laws are used to justify discrimination against gays and
lesbians in employment, housing and family law. They are also used to
intimidate gay people from exercising their First Amendment rights. Repeatedly
around the nation, gay and lesbian parents have lost custody or visitation
rights because of sodomy laws.
Given this history, Ruth Harlow of Lambda Legal says such
laws are a “stark affront to what the Constitution promises all of us.”
South Carolina’s law, drawing on English common law of
1533, criminalizes “the abominable crime of buggery.” An archaic term,
“buggery” was used as a catch-all for a range of sexual acts, including
bestiality, but very rarely applied to lesbian relationships. Although English
law was limited to anal sex in the early 19th century, some argue that South
Carolina’s law, like most sodomy laws, includes anal or oral sex between
same-sex or opposite-sex couples.
South Carolina also criminalizes adultery and fornication
(or sex between unmarried people), both punishable by fines and imprisonment.
Buggery is a felony crime, punishable by five years in prison and a $500 fine.
Between 1997 and 2002, S.C. court records indicate 30
cases in which the buggery law was used, though the charge was dropped in 25
of those cases, perhaps through plea bargaining.
Though South Carolina’s buggery law is rarely enforced
in the courts, it is repeatedly invoked in the court of public opinion to
justify discrimination against gays and lesbians.
For example, in fall 2001, former Lt. Gov. Bob Peeler
used the law to argue that public universities cannot include sexual
orientation in their nondiscrimination policies. Such policies, Peeler argued,
would violate state laws against fornication and sodomy. Such use of the law
clearly demonstrates how it is used in our state to enforce a climate of
intimidation and discrimination.
Similarly, when a gay student group was trying to form
[on a University of South Carolina campus] over 25 years ago, the law was
invoked to deny official recognition. It took a court decision to legitimize
the student group.
Society has changed a lot since then. Lambda hopes that
increased knowledge and understanding about gay and lesbian people will lead
to a more informed view, and that the court will strike down laws that are
intrusions into the private lives of all citizens.