Last edited: February 14, 2005

Supreme Court to Revisit Sodomy Laws

New Orleans Times-Picayune, December 8, 2002
3800 Howard Ave., New Orleans, LA 70140
Fax: 504-826-3369

By Alan Sayre, The Associated Press

NEW ORLEANS—If an apartment door in Houston had been locked, attorney John Rawls might have nothing to do except wait for the state Supreme Court to turn down his latest challenge of Louisiana’s sodomy law.

Because the lock wasn’t turned, the U.S. Supreme Court will soon take up a case that is complete with deep implications for the homosexual rights movement—as well as conjuring up Orwellian visions of the sex police on the prowl.

The high court ruled 5-4 in 1986 that consenting adults do not have a privacy right to engage in homosexual acts. Homosexual rights groups long have condemned that decision as a public portrayal of their sexual preference as demonic and criminal and a contributing factor to gay-bashing.

Texas and three other states ban only homosexual sodomy. Louisiana and eight other states ban all acts of anal and oral sex. In Louisiana, the ban also covers married couples.

What will be before the Supreme Court soon is a two-fold dispute:

  • States will argue that the legislatures have the right to define criminal and immoral sex acts and provide penalties and any privacy rights do not allow people to engage in whatever sexual activity they choose, even in their residences.
  • Homosexual rights groups will argue that the law discriminates against gays and lesbians and that there is a federal right to privacy that protects all consensual, non-commercial sex between adults in their homes.

In court filings in other sodomy challenges, states have argued that sodomy laws are intended to preserve public morals.

Anti-homosexual rights groups fear that if the Supreme Court says that sodomy laws discriminate through the equal protection clause of the federal Constitution, the ruling could spill over into such issues as workplace rights and same-sex marriages.

Rawls, who represents the Louisiana Electorate of Gays and Lesbians in a challenge of the Louisiana sodomy law, has been pushing the privacy and discrimination issues in state court, without much luck.

Earlier this year, the state Supreme Court refused to apply the state constitution’s privacy clause to homosexual conduct. Last month, a state appeals court said the 197-year-old sodomy law did not discriminate against homosexuals, presumably because it could be used on married couples.

If one fears the morals police, Texas is a perfect case.

Attorneys for John Geddes Lawrence and Tyron Garner said the men were bothering no one in 1998 when police, supposedly investigating a false report of an armed intruder, entered their apartment through an unlocked door and caught them in a sex act. They were each fined $200.

In a somewhat strange twist, the Georgia sodomy law upheld by the U.S. Supreme Court in 1986 was struck down 12 years later by that state’s highest court in a case that had nothing to do with homosexual acts.

In that challenge, a man accused of raping a woman testified that the act was consensual. Along the way, he described having oral sex with her. The jury acquitted him of rape—but convicted him of sodomy. He was sentenced to four years in prison. The state high court said the law violated privacy rights.

Prosecutors in Louisiana say the sodomy law here is seldom used, except on prostitutes and their customers. Violations carry up to five years in prison.

But Joe Cook, executive director of the Louisiana American Civil Liberties Union, says that if the law is on the books, it can be applied at any time—something he says should bring a shudder to everyone.

"It can be selectively enforced, which is very hard to prove," Cook said. "That makes it like traffic laws. If you get caught going through a stop sign, you can’t use as a defense the fact that police let five other people get away with it."

Rawls said the court could choose to decide on the states with sodomy laws covering only homosexual acts and leave the others "for another day." But the fact that the Supreme Court accepted the Texas case gives him cause for cautious optimism.

"Lawyers have a saying," Rawls said. "Courts don’t accept a writ to affirm a case."

Editor’s Note: Alan Sayre, an Associated Press reporter in New Orleans, covers various legal issues in the state.

[Home] [News] [USA]