Last edited: February 14, 2005


Louisiana Justices Hear Arguments In Sodomy Conviction Appeal

Baton Rouge Advocate, April 12, 2000
525 Lafayette St., Baton Rouge, LA, 70821
Fax 504-388-0371

By Joe Gyan Jr., New Orleans bureau

NEW ORLEANS – Louisiana’s 195-year-old sodomy law, which makes noncommercial oral and anal sex between consenting adults a felony punishable by up to five years in prison, is an unconstitutional violation of privacy, an attorney for a man convicted under the law told the state Supreme Court on Tuesday.

"We don’t have police officers in our bedrooms; we have the state in our bedrooms," Gretna attorney Byrne Dyer III, who represents Mitchell Smith, argued during a hearing at the Supreme Court.

But Orleans Parish Assistant District Attorney Valentin Solino, who said privacy rights were not argued at Smith’s criminal trial, urged the justices to hold off ruling on the sodomy law’s legality until a civil court attack on the law makes its way to the high court.

The civil case involves a 1994 lawsuit filed by several gay men and lesbians and the Louisiana Electorate of Gays and Lesbians. The suit raises privacy concerns but also contends that the sodomy law unfairly targets gays for punishment and legitimizes hatred of homosexuals. The law applies equally to heterosexuals and homosexuals.

In that case, Orleans Parish Civil District Judge Carolyn Gill-Jefferson threw out the law in March 1999 on privacy grounds. The state had argued that gay men and lesbians choose their sexual orientation and that the law is needed to promote marriage and encourage procreation. The state also contends it has the authority to outlaw immoral conduct and impose penalties for engaging in it.

The state Supreme Court also heard Tuesday from attorneys for several accused prostitutes who argued that the sodomy – or "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, commercial oral sex 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.

"The Legislature says oral sex is different from vaginal sex," Solino argued.

Attorney Cassandra Caswell, who represents one of the accused prostitutes, countered that oral sex between a man and a woman "is not unnatural behavior." Attorney Sharon Setzer, who represents two other accused prostitutes, argued that oral sex "is a commonly practiced form of conduct." Setzer said the different penalties for commercial oral sex and prostitution amount to cruel and unusual punishment in violation of the Eighth Amendment.

The Supreme Court took Tuesday’s arguments under advisement without indicating when a ruling would be issued.

In the noncommercial oral sex case, 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 that he had consensual oral sex with the woman.

"Although not charged, she was equally guilty of the crime," Justice Jeffrey Victory said during the hearing.

In throwing out the long-standing sodomy 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. The 4th Circuit judges reversed Smith’s 1996 conviction and sentence – a three-year suspended jail term and two years of probation.

The American Civil Liberties Union intervened in the case on Smith’s behalf, arguing in legal papers 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 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.

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