Last edited: January 01, 2005

Sodomy Wars Continue in the Court

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By Arthur S. Leonard

Courts have issued important new rulings in cases involving constitutional challenges to sodomy laws in Minnesota and Louisiana.

The Minnesota decision confirmed that a county trial court ruling in an ACLU test case several years ago that the sodomy law could not be enforced against consulting adults acting in private has statewide effect since it was never appealed to a higher court. Interestingly, the decision issued on March 20 came from a federal judge.

The Louisiana ruling, issued by the stateís Supreme Court on March 28, reaffirmed a prior holding by the court that the sodomy law does not violate the state constitutional right to privacy. At the same time, it kept alive a gay rights groupís challenge to the law, sending it back to a lower-level court for consideration of additional constitutional issues.

The Minnesota case arose out of rather unusual facts. Kevin Devescovi, the owner of a bar in Bemidji had oral sex with a female companion in the bar after closing late one night in May 1997. The same night, another straight couple also engaged in oral sex in the bar. Surveillance cameras recorded both sex acts.

Nearly a year later, police officers investigating another case came into possession of the videotapes, and charged Devescovi and the other male bar patron with sodomy. (Who knows why Devescovi held onto to the barís surveillance tapes so long?)

Devescovi pled guilty to a lesser, non-sexually-related misdemeanor charge, and the city refused to renew the liquor license for his bar. The other bar patronís experience was even more hapless. Unaware that there was a warrant for his arrest, he did not respond to police. In August 2000, when he was stopped by North Dakota police because his car was missing its front license plate, a check for outstanding warrants turned up the Minnesota sodomy charge. He was arrested, and required to report to the court in Bemidji the following week. Ultimately, however, the charge against him was dropped.

The two men, together with a Dr. "Jane Roe," filed suit in federal court seeking a declaration that the sodomy law violates the federal constitutional right of privacy. Roe alleged that she is a licensed psychologist and family therapist who offers sex therapy, and that the sodomy law was an impediment to her practice.

The state defendants moved for summary judgment, claiming the case was moot because the state had conceded in Doe v. Ventura, the ACLUís test case, that the sodomy law would not be enforced against consenting adults in private, and because none of these plaintiffs were actually prosecuted under the law.

The local law enforcement people in Beltrami County sought summary judgment on a different ground (with divergent implications) ĖĖ that the statute did not violate the federal constitution, relying on Bowers v. Hardwick. The plaintiffs also sought summary judgment, arguing that the statute was unconstitutional as a matter of law so no trial was needed.

District Judge Davis denied all the summary judgment motions and dismissed the case as "moot." Federal courts only have jurisdiction over live controversies; in this case, the state having conceded the unconstitutionality of the law in settling a prior case, David felt there was nothing for the federal court to decide.

"An order or judgment becomes final and binding after the appellate process is terminated or the time for appeal has expired," wrote Davis. "Jurisdiction of a Minnesota district court is not limited to any particular county but extends throughout the state. In this case, the Minnesota district court in Hennepin County issued a ruling on a matter of state law. Because the State of Minnesota or Attorney General Mike Hatch never appealed that decision, that decision is now binding state law. Accordingly, as it stands, Minnesotaís sodomy law is unconstitutional under Minnesotaís constitution."

The opinion in Devescovi v. Jesse Ventura, while not making any new law, is important for gay folks in Minnesota because it provides tangible, published support for the argument that the sodomy law, although still on the books, canít be used to prosecute people for consensual, adult sodomy anywhere in the state.

By contrast, the outcome in the Louisiana Supreme Courtís decision in Louisiana Electorate of Gays and Lesbians, Inc. v. State of Louisiana was disappointing. This case has been kicking around the Louisiana state courts since 1994. After lengthy pretrial discovery and much agonizing, Orleans Parish Civil District Court Judge Carolyn Gill Jefferson ruled in March 1999 that the stateís sodomy law was unconstitutional on privacy grounds "only insofar as it prohibits non-commercial, consensual, private sexual behavior by adult human beings," and issued an injunction against its enforcement in such circumstances.

Jeffersonís ruling was appealed, and while the appeal was pending, the state Supreme Court ruled in another case, State v. Smith (July 2000), an actual prosecution of a heterosexual man for engaging in oral sex with a woman, that the sodomy law does not violate the state constitutionís privacy provision. After the Smith ruling, the Supreme Court ordered that Judge Jefferson reconsider her decision in light of Smith. To the surprise of many, Jefferson reaffirmed her earlier ruling that the law was unconstitutional and reissued her injunction in March 2001, ruling solely on state privacy grounds.

Jefferson had ruled only on the plaintiffsí privacy claim; they had asserted a wide variety of other claims, none of which she had expressly ruled upon. This had been a point of contention ever since her earlier ruling, with plaintiffs appealing to the court of appeals seeking a determination on their other claims. Their appeal took on added importance after the Smith decision contradicted Jeffersonís privacy finding. Most significantly, the plaintiffs claimed that the sodomy law, although on its face applicable to all anal and oral sex, not just same-sex activity, was used mainly to discriminate against gays.

After Jeffersonís 2001 ruling, the plaintiffs appealed to the state court of appeal, seeking a ruling on their other constitutional claims. In November, that court ruled that the appeal should go directly to the Supreme Court, which had sent the case back to Jefferson for reconsideration. The Supreme Court heard arguments and quickly issued its decision on March 28.

The decision, in which none of the judges claimed individual authorship, pointed out that Jeffersonís finding in striking down the statute had been ruled out in the Smith case.

"Despite the clarity of our holding to this effect, the district court chose to depart from Smith and reached a contrary result on the law," the Supreme Court ruled. "This action involves, at least, a failure by the lower court to recognize its obligation to follow the law of this State as pronounced by this court."

Finding that the district court had implicitly rejected the plaintiffsí other constitutional claims and that the court of appeal had refused to rule on the case, the Supreme Court decided to take the easy way out here, writing that "we will transfer plaintiffís appeal of the remaining constitutional issues to the Court of Appeal, Fourth Circuit, for consideration under its appellate jurisdiction."

By passing the buck to a lower court, the Supreme Court forestalled, for now, the day when it will have to address the voluminous evidence the plaintiffs presented to show how the sodomy law fuels discrimination against gay people in Louisiana. Chief Justice Calogero, who had dissented in the Smith case, filed a partial dissenting opinion in this case as well. While agreeing that the district judge was bound to follow the courtís precedent in Smith, he endorsed reconsideration of Supreme Courtís holding in that case.

The bottom line: the Louisiana sodomy law, which has been the subject of repeated challenges since the mid-1980s, is still under the gun, although not on a state constitutional privacy theory. The litigation will continue before the Court of Appeal.

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