Last edited: February 14, 2005

Making Love Legal

After Years of Failure, Activists Are Watching Sodomy Laws Topple with Increasing Speed

The Advocate, March 19999

By Mubarak Dahir

As Republican minority leader in the Georgia senate, Eric Johnson has worked on his share of legislation. Still, Johnson’s latest effort is as likely to be as effective as stopping the tide from coming in. "I think we ought to be able to ban gay sex," he declared to the Savannah Morning News.

Johnson’s outburst was prompted by a ruling by the state supreme court in November. In a surprising decision, the court overturned Georgia’s infamous 165-year-old sodomy law, leaving antigay politicians in the Peach State blustering about reviving the sodomy statute through new legislation or by an amendment to the state constitution.

But Johnson and his conservative cohorts appear to be on the losing end of a sweeping, state-by-state campaign to topple sodomy laws.

In early February a Louisiana appeals court threw out the state’s sodomy law, stating that consensual acts of oral and anal sex are constitutionally protected as rights to privacy under the state constitution. In a 3-0 ruling issued on February 9, the court reversed the conviction of Mitchell Smith, who had been found guilty of "crimes against nature" by having a woman perform oral sex on him. Under the sodomy law, which covered heterosexual and homosexual acts, oral and anal sex were felonies punishable by up to five years in prison. "There can be no doubt that the right of consenting adults to engage in private noncommercial sexual activity, free from governmental interference, is protected by the privacy clause of the Louisiana Constitution," the judges wrote in their decision.

Two other states saw their sodomy laws overturned in 1998. In June the Rhode Island legislature voted to repeal that state’s 102-year-old law forbidding "abominable and detestable crimes against nature." And in October a Baltimore judge ruled same-gender sex was not illegal in Maryland-though she stopped short of declaring that the sodomy law violated the Maryland constitution.

And sodomy laws in Texas and Arkansas are believed to stand a good chance of crumbling under current legal challenges making their way through the state courts. The Texas law is being challenged by John Lawrence and Tyrone Garner, who were arrested after police walked into Lawrence’s Houston apartment. The officers, who were responding to a false report of a man with a gun, found the pair having sex and threw them in jail, where they spent a night before posting bail.

With the Louisiana ruling, there are now 11 states that still criminalize oral or anal sex between consenting adults. In five states-Arkansas, Kansas, Missouri, Oklahoma, and Texas- sodomy laws continue to specifically target same-sex couples. But activists and gay and lesbian legal advocates have been gleefully chipping away at the remaining vestiges of the codified criminalization of same-gender sex.

"I think we’re going to see the demise of all of the remaining laws in the next few years," predicts Suzanne B. Goldberg, a staff attorney at Lambda Legal Defense and Education Fund, which has been instrumental in fighting many of the state sodomy laws.

But the sweetest victory was clearly in Georgia, where the state supreme court found 6-1 that the sodomy law "manifestly infringes upon a constitutional provision...which guarantees to the citizens of Georgia the right of privacy." The statute became a notorious symbol of antigay oppression when the U.S. Supreme Court upheld it in the 1986 case Bowers v. Hardwick.

Goldberg, who is the lead attorney in the pending Arkansas and Texas cases, says the Georgia decision "could well have a domino effect" on other state cases.

"Oh, yeah, it’s a big logroller," agrees John Rawls, the gay civil rights attorney taking on the Louisiana sodomy law. While no state is bound by rulings in other states, "every state peeks to see what the others are doing. Without question, what happened in Georgia is going to impact what’s going on in Louisiana and everywhere else."

Rawls emphasizes that defeating sodomy laws is important even where they are seldom enforced. "It’s the government’s way of calling gays scum," he says. "The laws taint us as unindicted criminals for making love to our partners." The laws have been used to deny custody to gay and lesbian parents as well as to deny gay men and lesbians jobs. Echoing other activists, Rawls says he believes there is "no chance of real gay civil rights at a federal level until we get rid of every last sodomy law."

The Georgia law had proved frustratingly resilient. As recently as 1996 it withstood a legal challenge when it was used by undercover police to crack down on cruising at a highway rest stop. The Georgia supreme court upheld the law then by a 5-2 vote.

But Johnson and his colleagues got it wrong when they condemned the ruling as favoring gays over other citizens of Georgia. In fact, the case that finally upset the law so roundly despised by gay men and lesbians around the country had nothing to do with gay sex. Instead, it involved a married man who had been convicted of performing oral sex on his 17-year-old niece while his pregnant wife slept in the next room.

Dahir is an editorial writer at the St. Louis Post-Dispatch.

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