Supreme Court to Revisit Sodomy Laws
Times-Picayune, December 8, 2002
3800 Howard Ave., New Orleans, LA 70140
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
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
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.
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