Louisiana Sodomy Case Pending
Election will Change State Supreme Court
Washington Blade,
October 26, 2001
By Mike Fleming
NEW ORLEANS—The Louisiana Supreme Court has not
decided when it will hear the next round of arguments in the nine-year fight
over portions of Louisiana’s 196-year-old sodomy law, but the hearing won’t
happen before results of a court election change the panel.
"This is easily the longest-running sodomy challenge in American
history," said New Orleans attorney John Rawls, lead prosecutor in the
case. "It has never taken any state nine years—or more—to make a
final decision, and it’s highly unusual that it has been so long between
decisions this year."
Louisiana is one of 12 states that outlaws sodomy for both gays and
heterosexuals, according to the Web site www.sodomylaws.org;
four other states—Texas, Kansas, Oklahoma and Utah—ban sodomy only for
gays, according to the AP.
In March, an Arkansas judge threw out that state’s sodomy law, ruling
that the government cannot single out same-sex couples for prosecution for
consensual sex acts.
Louisiana filed its latest statements with the high court in September, and
Rawls followed suit Oct. 18. The court could now decide a date for oral
arguments "at any time," Rawls said.
The case started in criminal court in 1992; Rawls filed the pending civil
case in 1994 on behalf of Louisiana Electorate of Gays & Lesbians. The
case has volleyed back and forth between Orleans Parish District Court Judge
Carolyn Gill-Jefferson and the state Supreme Court twice since Gill-Jefferson
originally ruled the sodomy statute unconstitutional in March 1999.
But before the state Supreme Court hears the case, a change in the panel of
judges will take place that could affect the final ruling on sodomy.
Associate Justice Harry Lemmon retired from the court in May, leaving his
seat open through the end of his term in November 2002. Lemmon was considered
a liberal swing voter on the panel and sided with a minority opinion to repeal
the sodomy law in July 2000.
"Nobody could be as good for our case as Lemmon," Rawls said.
"His retirement was not a good thing for us."
On Oct. 20, voters in District 6 narrowed the field of candidates for
Lemmon’s seat. A runoff is scheduled Nov. 17 between St. John the Baptist
Parish District Judge Mary Becnel and Appeals Court Judge John Weimer.
One of the judges in the race for Lemmon’s place, David Gorbaty, was
defeated. Gorbaty is on an appellate court that has yet to rule on a second
part of the civil sodomy case. The case was effectively split in two when
Gill-Jefferson ruled the law unconstitutional on the basis of the right to
privacy, but constitutional on 11 other grounds.
The appellate court may have been holding that ruling to see if Gorbaty
would be promoted to the high court, Rawls said. With Gorbaty out of the state
Supreme Court race, that could mean movement on the appellate ruling soon, he
added.
Becnel is considered a moderate-liberal by court pundits and leads polls in
the runoff. Weimer’s conservative stance on a wide range of issues garnered
the endorsement of Louisiana Association of Business & Industry, a lobby
group that helped win the election of the two most conservative justices,
Jeannette Knoll and Chet Traylor.
"While we have not conducted studies on that race, Becnel has shown
her ideology as a social liberal in cases for poor people and children,"
said Brian Mayhan, a political science instructor at the University of New
Orleans. "That could bode well for defeating the sodomy issue. Weimer’s
conservative business leanings could make him more risky for social
issues."
The makeup of the court shouldn’t affect the state’s argument for
"leaving the sodomy law alone," said Assistant Attorney General
Charles Braud.
"[The state is] not trying to argue that the law is right or wrong,
but that the legislature, not the court system, should have responsibility for
keeping or repealing the law," Braud said. "The court itself has
said as much."
The effort to repeal the "sodomy law" has seen action both in the
judicial system and Louisiana’s state legislature this year. A plurality of
the state House and Senate voted to overturn the law, but failed to clear all
of the necessary hurdles to repeal the law.
Timeline
1805: Louisiana legislature enacts "Crimes Against Nature"
law that prohibits "unnatural carnal copulation between members of the
same sex or opposite sex, or with an animal." Maximum penalty is $2,000
and/or five years in prison.
1927: In State v. Schmidt, criminal court rules "sexual
intercourse with a dead human body" is not a crime against nature and
permissible in Louisiana.
1964: In State vs. Bonnano, the act of oral sex between two
men was found to qualify as "unnatural copulation." The defense
argued against the vagueness of the law since it does not specify which acts
are "unnatural."
1966: Civil Court 249 in State v. Young affirms that
"oral copulation between two women" is a crime against nature.
1978: Louisiana Supreme Court rules in State v. Phillips that
"placing a mouth upon a penis" constitutes a crime against nature. A
male defendant was charged and convicted based on a same-sex encounter. For
the first time, the majority opinion states that the existence of the law
should be the onus of the state legislature, not the courts.
1984: Expert medical witness in State v. Pruitt is not
allowed by Third District Court of Appeals to testify whether oral sex between
a man and a woman is "unnatural." Defense argued that previous
rulings were based on "homosexual behaviors" and did not apply in
opposite-sex cases. The witness was expected to testify that heterosexual oral
copulation is normal. Pruitt was convicted, but the decision was overturned on
a later appeal.
1985: Fourth Circuit Court of Appeals in State v. Picchini
backs classification of heterosexual and homosexual oral sex as crimes against
nature and states that the prosecution of such crimes is constitutional.
1992: In criminal case State v. Baxley, the Louisiana Supreme
Court rules that a civil case must be filed to attempt a repeal of the law
based on the right to privacy or any other issue of constitutionality.
1994: New Orleans attorney John Rawls files civil suit to have state’s
sodomy law repealed in the judiciary on behalf of Louisiana Electorate of Gays
& Lesbians. A preliminary injunction is put in place banning prosecution
of private consensual adult sex acts until the case could be heard.
October 1998: Rawls argues LEGAL v. State before Orleans
Parish Civil District Judge Carolyn Gill-Jefferson, arguing against the law on
the grounds of right to privacy and 11 other issues of constitutionality.
February 1999: In State v. Smith, Fourth District Court of
Appeals strikes down sodomy law on the basis of the state’s right to privacy
law; the case is appealed to the Louisiana Supreme Court.
March 1999: Gill-Jefferson rules in LEGAL v. State that
sodomy statute violates an individual’s right to privacy and is
unconstitutional, issues a permanent injunction prohibiting prosecution of
consensual adult cases. Case is automatically appealed to the state Supreme
Court. On the 11 other grounds, Gill-Jefferson rules that the law is
constitutional, splitting the case. The second part of the case is appealed to
the Fourth District Court of Appeals.
July 2000: In State v. Smith, Louisiana Supreme Court votes
5-2 to uphold sodomy law as constitutional, asks Gill-Jefferson to revisit her
decision in LEGAL v. State. Majority opinion states that the law should
be a legislative issue, not judicial.
Jan. 8, 2001: Part two of LEGAL v. State on 11 grounds of
constitutionality is heard by the Fourth District Court of Appeals. That
ruling is still pending.
March 9, 2001: Gill-Jefferson upholds her original decision in LEGAL
v. State and rules the sodomy law unconstitutional based on privacy,
reinforces injunction on prosecution of cases and remands decision back to
state Supreme Court.
April 23, 2001: State Senate votes 19-14 to repeal sodomy law in an
amendment to a House bill on sex offenders. Amendment stricken from bill by a
House committee before becoming law.
May 22, 2001: State House votes to repeal the sodomy law 47-46, but
fails to garner required two-thirds majority to pass the law.
—Compiled by Mike Fleming
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