Last edited: January 02, 2005


Louisiana Court Upholds Sodomy Law

Ruling Calls Oral and Anal Sex ‘An Injury Against Society Itself’

Washington Blade, July 14, 2000

By Lou Chibbaro Jr.

The Louisiana Supreme Court on July 6 upheld that state’s 200-year-old sodomy law, saying the law’s classification of oral and anal sex as a crime — even if committed by consenting adults in the privacy of their homes — does not violate a privacy rights clause in the state constitution.

In a 5-2 ruling, the court declared that the Louisiana State Legislature has the sole authority to pass or repeal sodomy laws and that any claim that such laws violate the state’s constitution are "unsupportable."

"There has never been any doubt that the legislature, in the exercise of its police power, has authority to criminalize the commission of acts which, without regard to the infliction of any other injury, are considered immoral," Justice Chet Traylor wrote for the majority.

"Simply put," Traylor declared, "commission of what the legislature determines as an immoral act, even if consensual and private, is an injury against society itself."

In a strongly worded dissenting opinion, Chief Justice Pascal Calogero wrote that the Louisiana Constitution protects citizens against "unreasonable searches, seizures, and invasions of privacy," and those protections cover sexual relations between consenting adults.

"I am of the opinion that the government has no legitimate interest or compelling reasons for regulating, through criminal statutes, adult, private, non-commercial, consensual acts of sexual intimacy," he wrote.

Michael Adams, associate director of the American Civil Liberties Union’s Lesbian and Gay Rights Project, said the Louisiana court’s decision goes against a clear trend set by other state supreme courts, which have overturned sodomy laws in recent years. The ACLU filed an amicus brief in the Louisiana case calling on the court to overturn the state sodomy law.

Adams noted that state supreme courts in Kentucky, Tennessee, Montana, and Maryland each have overturned their states’ sodomy laws in the 1990s. He said the privacy rights clauses in the constitutions of those states are similar to the one in the Louisiana constitution. Because of this, Adams said, he believes the Louisiana court based its decision more on conservative political leanings than on legal grounds.

"The outcome of these cases is often determined when the justices determine the political climate is ready for change," Adams said. "The political climate in Louisiana is quite conservative."

In his majority opinion, Traylor stated repeatedly that the court would be overstepping its bounds if it overturned the Louisiana sodomy law because some feel it is an unjust or outdated statute. "Courts do not rule on the social wisdom of statutes, nor their workability in practice," he wrote. "If a crime or a penalty is not defined to reflect current societal values, it is for the legislature, not the courts, to reflect this change."

But in his dissenting opinion, Calogero stated, "[T]he legislature cannot validly enact a law that impermissibly infringes upon a constitutional guarantee. ... And when there is doubt as to the scope of protection afforded by a constitutional guarantee, it is the province, and in fact the duty, of this court to interpret the law."

The case on which the Louisiana high court ruled, State of Louisiana vs. Michael Smith, stems from a September 1995 incident in which authorities charged Smith with sexually assaulting a woman he met in a bar and whom he invited to a hotel room. The woman testified she voluntarily joined Smith in the hotel room but did not consent to sex. A judge, following a non-jury trial, found Smith not guilty of a charge of simple rape but convicted Smith on a lesser count of simple crime against nature (oral sex). The judge sentenced Smith to a three-year suspended jail term. Smith appealed his conviction to Louisiana’s Fourth Circuit Court of Appeals. The appeals court overturned the conviction on grounds that the state’s sodomy statute violates the privacy rights clause of the state constitution. The state Supreme Court ruling on July 6 vacated the appeals court decision and reinstated Smith’s conviction.

[Home] [News] [Louisiana]