Last edited: February 14, 2005


Louisiana High Court Upholds Sodomy Law

PlanetOut, July 7, 2000

Summary: Louisiana’s Supreme Court found nothing in the state constitution to keep the legislature from dictating what kind of sex is acceptable.

The Louisiana Supreme Court ruled 5 - 2 on July 6 to uphold the state’s 1895 sodomy law, which makes oral or anal sex a felony punishable by up to five years’ imprisonment, even for private, non-commercial acts between consenting adults, regardless of their gender. The ruling reversed a state appeals court, which found the law violated privacy rights. But although this criminal appeal failed, it does not impede the progress of a separate pending civil challenge to the law by the group Louisiana Electorate of Gays and Lesbians.

Writing for the majority, Justice Chet Traylor rejected arguments based on the state constitution’s privacy guarantee, saying, " Simply put, commission of what the Legislature determines as an immoral act, even if consensual and private, is an injury against society itself. A violation of the criminal law of this state is not justified as an element of the ‘liberty’ or privacy’ guaranteed by this state’s constitution. The freedom to violate criminal law is simply anarchy and, thus, the antithesis of an ordered constitutional system. ... Any claim that private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable."

Traylor and the majority denied that the law posed any threat to consenting adults. He wrote that if a proscribed act "is truly consensual and private, it would be impractical to enforce the statue against the participants, since both would be guilty of the crime of sodomy and, consequently, there would be no victim to file charges and institute a prosecution. If the act takes place in private, and one of the participants files criminal charges against the other, it can be subject to prosecution as a nonconsensual act." On the other hand, the majority believe the law aids in the prosecution of sex offenders.

Dissenter Justice Harry Lemmon denied that the law has any efficacy against sex offenders but maintained that it represents government intrusion into private lives, and dissenter Chief Justice Pascal Calogero, Junior wrote that "the government has no legitimate interest or compelling reasons for regulating, through criminal statutes, adult, private, non-commercial, consensual acts of sexual intimacy." Lemmon wrote sneeringly, "The only apparent purpose of the prohibition is to dictate the type of sex that is acceptable to legislators. Two married persons should be able to choose how they conduct their nonpublic, voluntary sexual relations in the security of their own home; a law that takes that choice away from them is an intrusion by the legislative branch that is constitutionally intolerable."

In its response to the ruling the Lambda Legal Defense and Education Fund, which filed an amicus brief on behalf of various religious groups and individual clergy who oppose criminalizing private sex acts in the name of public morality, also took aim at the legislators as much as the justices. "The Court declined to second guess the legislature’s determination of what is constitutional. ... While that logic defies the American principle of having checks and balances, it also obligates the citizens of Louisiana to make sure that their representatives move to end this gross invasion of their privacy," according to Lambda Legal Director Beatrice Dohrn. Lambda Staff Attorney Stephen R. Scarborough, who wrote the organization’s brief, called the decision "a serious abdication of the court’s responsibility to impose constitutional standards, and its reasoning is intellectually dishonest."

The case before the court was a heterosexual one. Mitchell Smith was accused of assaulting a woman who prosecutors maintained was too intoxicated to consent. The evidence failed to convict him of rape, but both Smith and the woman testified to having consensual oral sex, so a trial judge convicted Smith under the "crimes against nature" statute and gave him a suspended sentence of three years imprisonment and two years probation. Louisiana’s 4th Circuit Court of Appeal ruled that the law violates privacy rights when applied to private acts of consenting adults, and overturned Smith’s conviction. The state Supreme Court reinstated both his conviction and sentence.

A related case considered along with Smith’s also failed. A group of sex workers caught in a police sting challenged the disparity between the felony charges and five-year sentences they faced (along with listing as a sex offender) for just soliciting oral sex for money and the misdemeanor charge and six-month sentence for prostitution, soliciting intercourse in exchange for money. The state Supreme Court rejected this appeal 6 - 1, with Calogero the only dissenter, as Traylor wrote for the majority that different penalties can be set for different sex acts just as they are for the sales of different kinds of drugs. The high court reinstated the indictments against the sex workers which a trial judge had thrown out.

The American Civil Liberties Union’s (ACLU) Lesbian and Gay Rights Project had filed a friend-of-the-court brief. The Project’s associate director Michael Adams said, "This decision is obviously disappointing, but we have never looked at eliminating sodomy laws as short-term work. The struggle against these unconstitutional laws has gone on for decades, and we are committed to continue the fight until every single state is free of such statutes." Louisiana is one of 18 states which along with Puerto Rico criminalize certain acts between consenting adults. Five of those states’ laws apply only to acts between people of the same gender. The ACLU is currently challenging the Puerto Rico and Minnesota laws, while the Lambda Legal Defense and Education Fund is challenging some others, notably Texas’.

No hearing date has been set for the civil challenge in Louisiana, which was first filed in 1994. In March 1999, that lawsuit led Orleans Parish Civil District Judge Carolyn Gill Jefferson to strike down the law as violating the state constitution’s privacy guarantees — a ruling effective only in Orleans Parish. The state has appealed her decision.

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