Last edited: February 14, 2005


Sodomy Law Showdown Slated Before High Court

Baton Rouge Advocate, March 15, 2000
525 Lafayette St., Baton Rouge, LA, 70821
Fax: 504-388-0371

By Joe Gyan Jr., New Orleans bureau

NEW ORLEANS – The state Supreme Court will be the scene of a showdown April 11 over the constitutionality of a 195-year-old Louisiana sodomy law a state appellate court struck down last year.

The "crime against nature" law, which makes oral and anal sex between consenting adults felonies punishable by up to five years in prison, applies equally to homosexuals and heterosexuals, but gay men and lesbians say it targets them.

In throwing out the long-standing law in February 1999, a unanimous three-judge panel of the 4th Circuit Court of Appeal said noncommercial, consensual oral and anal sex is protected by the right to privacy in the Louisiana Constitution.

In its ruling, the 4th Circuit judges reversed Mitchell Smith’s 1996 conviction and sentence: a three-year suspended jail term and two years probation.

Smith was accused of raping a woman.

Orleans Parish Criminal District Judge Patrick Quinlan acquitted him of rape, but found him guilty of "crime against nature" because both Smith and the woman admitted they engaged in oral sex.

Smith testified he had consensual oral sex with the woman.

Gay rights groups praised the 4th Circuit decision, saying it decriminalized their only sexual options.

The Orleans Parish District Attorney’s Office appealed the ruling to the state Supreme Court.

The American Civil Liberties Union joined the case on Smith’s behalf, arguing in documents filed at the high court that the state has no compelling or even rational interest to justify criminalizing private, noncommercial sexual activity between consenting adults whatever their sexual orientation.

The executive director of the Louisiana ACLU, Joe Cook, said it’s time for the high court to "get the state’s police out of the bedrooms of consenting adults – heterosexuals, gays and lesbians, married and unmarried alike – who choose oral sex as an important part of their intimate relationships."

The high court has consolidated Smith’s case with a challenge from several accused prostitutes who say the crime against nature law punishes accused prostitutes more severely for soliciting oral sex rather than intercourse.

The accused prostitutes allegedly offered undercover police officers oral sex for money.

Under the crime against nature law, oral sex for money is punishable by up to five years in prison. Prostitution, defined as offering intercourse for money or trade, is a misdemeanor with a maximum sentence of six months.

In the Smith case, the 4th Circuit judges said they examined constitutional cases on sodomy laws in other states, rejecting arguments that sodomy is immoral, discourages procreation and leads to short-lived and shallow relationships.

The judges also cited a 6-1 decision by the Georgia Supreme Court in November 1998 that struck down that state’s 165-year-old sodomy law because of privacy rights guaranteed in the Georgia Constitution.

In 1986, the U.S. Supreme Court upheld Georgia’s sodomy law by a 5-4 vote, saying consenting adults have no constitutional right to private homosexual conduct.

That decision prompted gay rights advocates to file suits in state courts saying sodomy laws violate state constitutions.

Another challenge to Louisiana’s sodomy law also has made its way to the Louisiana Supreme Court, but no hearing has been set.

The case, which involves a 1994 lawsuit filed in state court by several gay men and lesbians and the Louisiana Electorate of Gays and Lesbians, likewise raises privacy concerns but also contends the sodomy law unfairly targets gays for punishment and legitimizes hatred of homosexuals.

In that case, Orleans Parish Civil District Judge Carolyn Gill Jefferson threw out the law last March on privacy grounds.

The state had argued gay men and lesbians chose their sexual orientation and the law was needed to promote marriage and encourage procreation.

The state also says it has the authority to outlaw immoral conduct and impose penalties for engaging in it.

Self-proclaimed gay lawyer John Rawls of New Orleans, who represents the gay men and lesbians in the civil case, has called the crime against nature law "Louisiana’s official condemnation of its lesbian and gay citizens."

The civil suit claims the law is "viciously directed" against gays and lesbians.

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