Last edited: February 14, 2005

Missouri’s Anti-Sodomy Law Similar to Texas Case

KOLR10-TV, June 26, 2003

A U.S. Supreme Court decision striking down Texas’ anti-sodomy law raises questions about the legality of a similar Missouri law, Attorney General Jay Nixon said Thursday.

Gay-rights activists and legal analysts said Thursday’s ruling knocked out laws in Missouri, Kansas, Texas and Oklahoma that barred consensual gay sex, even in private.

The ruling “has the effect of invalidating Missouri’s law,” said Denise Lieberman, legal director for the ACLU of Eastern Missouri.

“This was a pretty sweeping Supreme Court ruling that recognized all people have a fundamental right to intimate association that cannot be infringed by the state,” she added.

Nixon declined to go that far.

“Missouri’s law on sexual misconduct in the first degree ... does contain similar language to the Texas law struck down today by the court,” Nixon said in a statement Thursday. “Today’s ruling appears to call into question Missouri’s law prohibiting consensual same-sex sexual activity.”

Nixon added that his office was reviewing the decision to determine its impact in Missouri. He said his office would also be talking to county prosecutors about the ruling.

But Ken Jones, an attorney who publishes the Missouri Lawyer’s Weekly newspaper, said: “In my opinion, the U.S. Supreme Court has overturned the Missouri statute, which singles out homosexuals engaging in consensual sexual acts.”

Here’s the text of Missouri’s sodomy law, which is Section 566.090:

“1. A person commits the crime of sexual misconduct in the first degree if he has deviate sexual intercourse with another person of the same sex or he purposely subjects another person to sexual contact without that person’s consent.

“2. Sexual misconduct in the first degree is a class A misdemeanor unless the actor has previously been convicted of an offense under this chapter or unless in the course thereof the actor displays a deadly weapon in a threatening manner or the offense is committed as a part of a ritual or ceremony, in which case it is a class D felony.”

The law has seldom been enforced in Missouri.

But in Jefferson County last year, the county prosecutor charged six men with violating the law at an adult video store. The ACLU is representing four of those men in asking that the charges be thrown out on constitutional grounds. Jefferson County Associate Circuit Judge Mark Stahl held a hearing in February and had been awaiting the Supreme Court decision on the Texas case before ruling.

“I would certainly hope that the judge would consider this Supreme Court ruling to be dispositive and dismiss the charges against our clients in short order,” Lieberman said. “Our clients have been significantly affected by these charges. One had to move. One was fired from his job.”

Lieberman said she had not spoken to her clients about the ruling.

Jefferson County Prosecutor Bob Wilkins, who filed the charges, did not immediately return a call to his office in Hillsboro from The Associated Press.

The 6-3 decision came in a case brought by two men charged in 1998 with violating a Texas law barring gay sex.

Missouri and three other states, including Texas, have laws dating to the 1800s barring gay sex, even in private. Nine other states ban consensual sodomy for everyone.

Missouri’s Supreme Court had upheld the state anti-sodomy law in 1986. The state law carries a maximum penalty for first-time offenders of up to one year in jail and a $1,000 fine.

A family-values activist who has lobbied in the Missouri Legislature against repealing the law called the ruling a “sad decision” that curtails the state’s right to protect its citizens from health risks.

But Bob Barnett, the faculty advisor for the gay and lesbian student organization BiGALA at Southwest Missouri State University said the ruling is welcome news to people who advocate homosexual rights. “I think people are excited about it. It’s been a long time in coming. The laws were used to justify discrimination and the overturning of them is a great step forward.”

Jeff Wunrow, executive director of PROMO, a statewide gay rights lobbying organization, said he was “hugely pleased” about the ruling. Wunrow has lobbied unsuccessfully for years in Jefferson City to persuade lawmakers to repeal Missouri’s anti-sodomy law.

“This is something that has been a black eye on our Supreme Court and our country and in Missouri for years, because the Missouri law is similar to the Texas law,” Wunrow said from St. Louis. “This is a marvelous step forward.”

He said gay rights activists planned rallies Thursday night in Columbia, St. Louis, Kansas City and Springfield to celebrate the ruling.

Greg Razer, PROMO’s field organizer for western Missouri, said Thursday was a historic day.

“It’s the first time in our nation’s history that (gays) aren’t criminals simply because of who we are as a people,” he said.

Razer added that he hopes the ruling will lead to more civil liberties for gay and lesbian couples, including opportunities to adopt children.

“Lots of times gay and lesbian couples have not been allowed to adopt children,” he said. “In many circumstance the decision was based on the fact that a gay or lesbian couple was violating the Missouri sexual conduct law. That is no longer valid, we are no longer criminals in this.”

Kerry Messer, president of Missouri Family Network, has led lobbying efforts to retain the state law against gay sex. He said the prohibition was a matter of “not only values, but public health” because gay sex contributes to a greater number of sexually transmitted diseases.

“I don’t see our sodomy law as being any more restrictive or offensive than our seat belt law or helmet law or mandatory vaccination laws designed to protect the health of our citizens, so I’m very disappointed,” Messer said.

The ruling reversed course from a U.S. Supreme Court ruling 17 years ago that said states could punish homosexuals for what such laws historically called deviant sex.

(with help from the Associated Press)

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