Sodomy Wars Continue in the Court
145 West 28th Street, New York, NY 10001
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 state’s 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 group’s 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
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 bar’s
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
patron’s 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 ACLU’s 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) –– 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, Minnesota’s sodomy law is unconstitutional under Minnesota’s
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, can’t
be used to prosecute people for consensual, adult sodomy anywhere in the
By contrast, the outcome in the Louisiana Supreme Court’s 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 state’s 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.
Jefferson’s 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 constitution’s 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 plaintiffs’ 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 Jefferson’s 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
After Jefferson’s 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 Jefferson’s 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 plaintiffs’
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 plaintiff’s 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 court’s precedent
in Smith, he endorsed reconsideration of Supreme Court’s holding in that
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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