Last edited: February 14, 2005


Louisiana High Court Mulls Sodomy Law

PlanetOut News, April 12, 2000

SUMMARY: The first case to reach Louisiana’s Supreme Court involves heterosexual oral sex, but its progress can’t be separated from the pending civil lawsuit by gay and lesbian activists.

Gays and lesbians are challenging Louisiana’s 195-year-old "crimes against nature" law with a civil lawsuit, but it was an entirely heterosexual criminal case that was the first to reach the state’s Supreme Court on April 11. Both cases argue that the law violates the Louisiana constitution’s privacy guarantee — a right that is not protected under the federal constitution — although the civil case also argues that the law is particularly damaging to gays and lesbians. Lower courts have already thrown out the law, which makes oral and anal sex a felony punishable by up to five years’ imprisonment even when performed in private between consenting adults without money changing hands. The court gave no indication when it will rule.

The state high court chose to combine the case of a man convicted under the statute for consensual oral sex when a rape charge failed and the case of several sex workers; the women face the same possible felony charge and five-year sentence for commercial oral sex but only a misdemeanor punishable by up to six months for commercial intercourse.

The man, Mitchell Smith, was convicted in 1996 and given a three-year suspended prison term plus two years probation. Louisiana’s 4th Circuit Court of Appeal rejected state arguments that oral and anal sex acts are immoral, discourage procreation and result in brief and shallow relationships; instead the court opted to examine legal cases, including the quite similar case that led the Georgia Supreme Court to strike down that state’s equally venerable sodomy law in late 1998. That Louisiana appellate court in early 1999 unanimously reversed Smith’s conviction and declared the law unconstitutional insofar as it applied to private non-commercial acts between consenting adults. The American Civil Liberties Union (ACLU) joined Smith’s case before the state Supreme Court to argue that the state has no compelling interest — and in fact no rational interest — in criminalizing private non-commercial sex acts between consenting adults, regardless of gender.

"We don’t have police officers in our bedrooms; we have the state in our bedrooms," Smith’s attorney Byrne Dyer III told the state high court. "We have the state in our bedroom saying, ‘All of you alleged of having oral sex are alleged of committing a felony.’"

Orleans Parish Assistant District Attorney Valentin Solino made a few counterpoints, but primarily asked the court to delay its ruling on the constitutionality of the "crimes against nature" law until after hearing the civil lawsuit by the Louisiana Electorate of Gay and Lesbians (LEGAL), for which no date has been set. Solino noted that the privacy argument the state appeals court relied on in Smith’s case had not actually been made before that court, and that it was not actually an issue in Smith’s case. He admitted that it would be "a steep hill to be climbed" to try to show that the law does not in fact violate privacy rights, but he had a simpler suggestion: the Supreme Court could simply order Smith acquitted, since at the time of his conviction a court order was already in effect in New Orleans prohibiting enforcement of the law. "That gives the court the opportunity to decide [Smith’s conviction] without taking up the privacy issue."

The Associated Press described this as "anything but a spirited defense" of the law, but Solino also noted that, "If the Legislature says oral sex is different from vaginal sex and we should punish it differently, we have a right to do that."

One sex worker was represented by Cassandra Caswell of the Tulane Law Clinic and two others by Sharon Setzer of the Louisiana Appellate Project. Both argued that oral sex is not in fact "against nature" but has been found in research to be a common practice, with perhaps 95% of the U.S. adult population having participated. Setzer argued that the difference in penalties between oral sex and intercourse is so extreme as to constitute a violation of the Eighth Amendment to the U.S. Constitution, which prohibits "cruel and unusual punishment." She also noted that anyone convicted of soliciting oral sex would be subject to recent sex offender laws requiring registration with police and making their record known to neighbors, landlords and schools. Caswell described the law’s enforcement as "arbitrary and capricious."

"In our society, few matters are considered more private than sexual relations between consenting adults," the ACLU’s friend-of-the-court brief said. "When considering a public morality justification for [the sodomy statute], it is important for the Court to recall that prohibitions on interracial marriage, and the segregation of races generally, were values deeply embedded in the social morality of many areas of the United States and were values that invoked both God and nature. But appeals to natural or theological ethics cannot constitutionally be used to legitimate laws whose sole function is to give effect to private citizens’ prejudice or conviction." It noted that, "during the past decade, state court after state court has struck down sodomy statutes like [Louisiana’s], holding that private, non-commercial sexual activity between consenting adults is entitled to constitutional protection and no governmental interest justifies denying this protection" so that "rather than plowing new ground, [a ruling against the sodomy law] will be consistent with the overwhelming trend in this country’s courts and legislatures."

Despite the U.S. Supreme Court’s 5 - 4 finding in Georgia’s notorious "Bowers v. Hardwick" case that the states do have the right to regulate private sexual behavior (a decision in which swing vote Justice Lewis Powell later felt he should have gone the other way) courts have recently thrown out sodomy laws in not only Georgia (1998) but also Maryland (1999), Montana (1997), Tennessee (1996), and Kentucky (1993), thanks in part to the ACLU. Louisiana is one of thirteen states with a sodomy law applying to both heterosexual and homosexual acts, while five other states have laws applying exclusively to gays and lesbians. Challenges are in progress in Arkansas, Puerto Rico, Texas and Virginia.

The civil lawsuit challenging Louisiana’s "crimes against nature" law was first filed in 1994. In March 1999, an Orleans Parish Civil District judge rejected state arguments that gays and lesbians "chose" their sexual orientation and that the law serves to promote marriage and procreation, to declare the law in violation of the state constitution’s privacy guarantee. The lawsuit’s argues that the law "is viciously directed" against gays lesbians and serves to legitimize anti-gay sentiment. The lead attorney for the several plaintiffs, gay John Rawls, has described the "crimes against nature" law as "Louisiana’s official condemnation of its lesbian and gay citizens."

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