Last edited: February 14, 2005

U.S. Supreme Court Strikes Down South Carolina’s Sodomy Law

Associated Press, June 26, 2003

By Jacob Jordan, Associated Press Writer

COLUMBIA, S.C.—South Carolina’s law prohibiting sodomy was struck down by a U.S. Supreme Court ruling Thursday saying that the law was an unconstitutional violation of privacy.

The law was rarely enforced in South Carolina, and several officials said they had never heard of anyone here being charged with consensual sodomy. Officials say it’s unlikely there’ll be any movement to repeal the law—a felony punishable by five years in prison or a $500 fine—from South Carolina’s books.

The 6-3 ruling reverses course from a high court decision 17 years ago that states could punish homosexuals for what such laws historically called deviant sex.

South Carolina Attorney General Henry McMaster disagreed with the high court’s decision Thursday and said it recognizes a “fundamental right” to engage in consensual sodomy.

South Carolina, along with some other states, had filed a brief in support of Texas.

University of South Carolina assistant law professor Andy Siegel said “it is impossible” for South Carolina’s law to survive this decision.

“Whether South Carolina chooses symbolically to remove the statute from the books or to let it sit there as a dead letter, no conscientious judge could sustain a prosecution under that statute,” Siegel said.

McMaster said the “potential ramifications upon our laws are complex and troubling.”

Siegel agreed, saying the ruling could affect gay marriages and child custody cases. Though seldom enforced by police, the laws are sometimes invoked by judges to deny homosexuals legal custody of their children, equal employment guarantees and other civil rights.

“It will take away the easy argument that some courts simply say, ‘Your conduct is illegal,’” Siegel said.

Whether courts in this state are going to come to different decisions in custody cases or are prohibited from considering a parent’s sexual orientation remains an open question, Siegel said.

South Carolina House Minority Leader James Smith, D-Columbia, applauded the court’s decision. “That law has been used as a hammer, if you will, to discriminate,” Smith said.

Smith said it would be difficult to get the state law taken off the books because the Legislature is controlled by Republicans.

Sen. Jake Knotts, R-West Columbia, agreed there probably won’t be a movement to repeal the law. Knotts, a former law enforcement officer for 29 years, said he doesn’t condone sodomy and he doesn’t remember anyone ever being charged with the crime.

“It’s been going on forever in South Carolina and it’s evidently been kept in private,” Knotts said.

But Nekki Shutt, chairwoman of the South Carolina Equality Coalition, said there have been 30 sodomy cases and five convictions in the past five years. The state Court Administration confirmed at least six convictions in the past five years, but it was unclear how many people were actually charged with the crime.

Shutt said the crime not only affects those people, but the rest of South Carolina as well. “I think it will go a long way to reduce the legal basis for discrimination,” she said.

Rep. John Graham Altman, R-Charleston, said the decision will have little impact.

“It just follows in the great liberal tradition of you do what feels good,” the attorney said. “It’s certainly not the mainstream thought in South Carolina.”

Smith compared the sodomy law to laws that banned interracial marriages. The U.S. Supreme Court in 1967 said banning interracial marriages was illegal, but South Carolina didn’t repeal its state law until 1999, and was one of the last states to do so.

Oran Smith, president of the Palmetto Family Council said he wasn’t shocked by the court’s decision, but was disappointed.

“Sodomy has always been that first step, that first move toward eventual recognition of gay marriage and then after that gay adoption,” Smith said. “So our concern ... the moral underpinnings, which we think our law is based in this land, seem to be eroding.”

[Home] [News] [Lawrence v. Texas]