Last edited: February 14, 2005


Louisiana Sodomy Law Challenged

PlanetOut News, January 8, 2001

Having lost on the question of whether Louisiana’s sodomy law violates privacy rights, activists are pressing their case in a state appeals court with a different set of issues.

Louisiana’s 4th Circuit Court of Appeal heard arguments January 8 about whether the state’s 196-year-old anti-sodomy law violates rights guaranteed by the Louisiana Constitution. Among the charges being made by the Louisiana Electorate of Gays and Lesbians (LEGAL) in the New Orleans courtroom was that the law discriminates against gays and lesbians by prohibiting oral and anal intercourse between consenting adults. Last July, the Louisiana Supreme Court ruled that the law, which punishes sodomy with up to five years imprisonment, did not violate privacy rights. But it has never ruled on the constitutional issues raised by this case.

Louisiana is one of 18 states that, along with Puerto Rico, criminalize certain sex acts between consenting adults. Five of those states’ laws apply only to acts between people of the same gender. The American Civil Liberties Union is currently challenging Puerto Rico and Minnesota’s laws, while the Lambda Legal Defense and Education Fund is challenging some others, notably the one in Texas.

The lawsuit challenging Louisiana’s "crimes against nature" law was first filed in 1994. In March 1999, district Judge Carolyn Gill-Jefferson ruled that the law violated the state constitution’s privacy guarantee. But in July 2000, the state’s supreme court effectively reversed that decision when it decided in a separate case (this one brought by a heterosexual man) that citizens’ privacy rights were not threatened by the sodomy ban. Writing for the majority, Justice Chet Stevens said, "Any claim that private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable."

However, the current case focuses on the handful of non-privacy issues on which Judge Gill-Jefferson decided in favor of the state. LEGAL argues that the law is "viciously directed" against gays and lesbians and serves to legitimize anti-gay sentiment. It "denies homosexuals the right to have sex," said John D. Rawls, LEGAL’s attorney, before the three judge panel on January 8, according to the Associated Press. "This law says that gay people are perverts; it says that gay people are sex offenders. ... That is cruel, unusual punishment."

Attorneys for the state claimed the law was not discriminatory since it bars both homosexuals and heterosexuals from engaging in sodomy. Additionally, they said it was completely permissible for the state to prohibit conduct it deems immoral. However, Rawls countered that since gay men and lesbians cannot engage in sex that is not sodomy, the law is indeed discriminatory.

The appeals court arguments are crucial for LEGAL, according to the Associated Press, since the issues raised by the case are exclusively on the state level and cannot be appealed to the federal courts. Moreover, the U.S. Supreme Court ruled in 1985 — in its notorious 5 - 4 Bowers vs. Hardwick decision — that states do have the right to regulate private sexual behavior. Still, courts have managed to throw out sodomy laws in five states over the last eight years.

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