Last edited: December 08, 2004


Louisiana's Sodomy Statute Is Challenged

New York Times, October 31, 1998
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By Rick Lyman

NEW ORLEANS -- Jim Wiltberger, an accountant and political activist, remembered what it was like to be a gay man traveling outside the French Quarter into the more conservative and unwelcoming parishes of Louisiana. Gay men identified themselves with code words, he said. They signaled one another by twisting their pinkie rings. They had colored handkerchiefs sticking out of their pockets to advertise their sexual orientation, with different colors connoting particular proclivities.

"But then there got to be something like 54 different colors and nobody could remember what the code was and, besides, at a bar you couldn't see the color in the dark," Wiltberger said from the witness stand today in Civil District Court in New Orleans, a wobbly air-conditioner fan clanging in the background.

Even as religious conservatives and some Republican politicians have intensified their criticism of homosexuality and urging states to strengthen or more strictly enforce their antisodomy laws, gay and lesbian activists have continued a decade-old strategy of attacking the 19 remaining state antisodomy statutes, one state at a time. The current battle is in Louisiana.

In a case that opened on Monday and was expected to run at least a week, John D. Rawls, a gay New Orleans lawyer, is arguing that the state's antisodomy law is incompatible with the Louisiana Constitution.

The trial began with a veterinarian describing how some 460 species of mammals have been known to exhibit some form of homosexual behavior. It continued with a discussion of how "crime against nature" statues date to 12th-century ecclesiastical laws. And it included the testimony of several homosexuals about how the law had been used to discriminate against them in Louisiana.

The Louisiana law against "unnatural carnal copulation" makes it a felony punishable by up to five years in prison and applies to both homosexual and heterosexual couples.

Rawls said he would prove that the law was invalid because it was religious in nature, that it discriminated against people whose rights were protected by the State Constitution and that there was no rational scientific basis for it.

"Of course that's what he's going to do, that's what he ought to do, that's the smart thing to do," said Charles Braud, a lawyer in the state Attorney General's office assigned to defend the statute. "But this statute has been on the books in Louisiana for 150 years and it's the Attorney General's job to defend the Constitution and the state's laws. I believe all we have to do is show that the legislators had a rational reason for enacting the law."

Braud said the state would wait until Rawls finished his arguments before deciding whether to call any of its witnesses, including mental health experts and the leaders of groups that believe homosexuality is a chosen life style that, with counseling, can be unchosen.

"It's my hope that we will determine he has not proved his case and not have to present any witnesses at all," Braud said.

The Lambda Legal Defense and Education Fund has led some of the efforts to overturn antisodomy laws and is assisting in this case.

"Back in the early 1960's, every state in the union had some form of antisodomy statute," said Suzanne B. Goldberg, a lawyer with the organization.

"Now there are 19 states that still have them, 14 that outlaw sodomy and oral sex between all couples and 5 that outlaw it only for same-sex couples."

The issue, gay activists say, is not so much the arrest of people for engaging in such sex acts but the other ways in which the laws are used to discriminate against or clamp down on homosexuals.

"Sodomy laws are used to brand gays and lesbians as criminals, and they are also used as the basis for all sorts of other discrimination," Ms. Goldberg said. "There have been instances, in Texas, Florida and Georgia, where they were used to deny jobs to gay applicants, and in North Carolina and Virginia such laws were used as a basis for denying custody in divorce cases. It's also often used as a means of keeping gays out of the political process."

Even more important, she said, was the social climate that such laws create in a community, perhaps encouraging those disposed to violence against homosexuals.

Many states repealed their anti-sodomy laws in the late 60's and early 70's. In 1986, though, the Supreme Court, in a 5-to-4 vote, ruled in a case involving a gay Georgia man arrested while engaging in oral sex in his own home that there was no privacy protection under Federal law that invalidated the Georgia statute. As a result, gay groups have moved into the state courts and legislatures in the last decade, because state constitutions sometimes guarantee more specific and widespread rights than does the Bill of Rights.

Since that Supreme Court decision, Nevada and the District of Columbia have voted to repeal their antisodomy laws, and state courts have overturned them in Kentucky, Montana and Tennessee.

But not all efforts to have the laws repealed have succeeded. In Texas, an appeals court declined to rule on the constitutionality of that state's law. In Missouri, a state court upheld the state's antisodomy law, arguing in part that Missouri had a public health interest in outlawing anal and oral sex, since such acts could spread the AIDS virus.

Gay activists say they are already looking beyond the Louisiana case, to battles in Arkansas and Maryland.

"The issue in every state is always the same, whether that state's courts are willing to tear up their state constitution or throw out their sodomy laws," Rawls said. "This is a continuing, galling insult to all lesbian, gay, bisexual and transgender persons."

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