Last edited: December 06, 2004

Ventura Administration Tries To Limit Ruling Striking Down Sodomy Law; Hearing Thursday

ACLU Lesbian & Gay Rights Project, June 6, 2001
Contact: Eric Ferrero, Public Education Director
Lesbian and Gay Rights Project/AIDS Project
125 Broad St., 18th Floor, New York, NY 10004-2400
Tel: 212-549-2568; Fax: 212-549-2650

MINNEAPOLIS, MN — In a legal maneuver the American Civil Liberties Union called "callous and absurd," attorneys for the state of Minnesota will argue in court tomorrow that a recent ruling that said state’s prohibition on oral and anal sex is unconstitutional should not apply to anyone other than the small handful of plaintiffs named in the lawsuit.

State District Court Judge Delila F. Pierce struck down the sodomy law late last month. The ACLU, which brought the lawsuit challenging the sodomy statute, had requested that the case be technically certified as a class action, to make certain that a favorable ruling would apply to all Minnesotans. The state decided after the ruling to oppose this, and tomorrow morning Pierce will hear arguments from the ACLU and state lawyers.

"This law invited the state into every bedroom in Minnesota, criminalizing some of the most common forms of intimacy between adults," said Charles Samuelson, Executive Director of the ACLU state affiliate in Minnesota. "It is difficult to imagine a more blatant invasion of privacy."

Minnesota Governor Jesse Ventura, a defendant in the case along with the attorney general and the state itself, agreed last month on the day the ruling was released. "The judge’s action is consistent with the governor’s principle that there are certain things the government should not have a role in," Ventura spokesman John Wodele told the St. Paul Pioneer-Press. But just days later, Ventura’s administration filed legal papers seeking to limit the ruling’s impact.

"The sodomy law has been declared unconstitutional — and the state has no good reason to say that it should be unconstitutional for some people, but not everyone," said Matt Coles, Director of the ACLU Lesbian & Gay Rights Project.

In court papers, the state argues that instead of certifying the case as a class action, the court should force the ACLU to amend the initial lawsuit to name all local law enforcement entities in the state as defendants.

"This is nonsense," said Coles, who has led court challenges to sodomy laws in several states. "The issue here isn’t who ought to be sued but who ought to benefit from the court’s ruling that the law is illegal."

Judge Pierce’s decision striking down the sodomy law noted that the plaintiffs in the case "represent a cross section of Minnesotans impacted by the sodomy statute." The plaintiffs are a half-dozen gay and straight Minnesotans whose jobs, homes and relationships with their children are threatened by the sodomy law.

The ACLU maintains that, as of now, it is extremely unlikely that any law enforcement entity in Minnesota can enforce the sodomy law. "Any criminal prosecution is brought in the name of the state of Minnesota. And last month, Judge Pierce told the state the law is unconstitutional," Coles explained. However, to leave "absolutely no question," the ACLU asked that the case be certified as a class action so that every person against whom it could possibly be applied would be explicitly covered by Judge Pierce’s order, Coles said.

The state’s opposition is a stark reminder of the impact sodomy laws have, according to the ACLU. "There’s a misconception that sodomy laws are just archaic legal codes that remain on the books in name only, and that there’s no strong support for keeping them around," Coles said. "It’s a wake-up call that the government of Minnesota is actually asking a court to say the law is unconstitutional for six or seven people, but nobody else."

The ACLU said Minnesota’s sodomy law has a direct effect on citizens, including the 1997 arrest and prosecution of a Beltrami County man who engaged in consensual oral sex with a woman. The sodomy law also was used for years to help prevent passage of a state law banning discrimination based on sexual orientation. That legislation was finally enacted in 1993.

The ruling in Doe, et al. v. Ventura, et al. came on the heels of several recent developments affecting similar laws nationwide. Last month, Arizona Governor Jane Hull signed a law repealing that state’s sodomy statute. In March, a state court in Arkansas found its sodomy law unconstitutional. The Puerto Rico Supreme Court is currently weighing the ACLU’s challenge to that sodomy law. But a Texas Court of Appeals upheld that state’s sodomy law last month, in a decision now being appealed.

Excluding Arizona, Arkansas and Minnesota, 15 states have laws prohibiting oral and anal sex between consenting adults, some of which only apply to same-sex intimacy — but all of which are used disproportionately against lesbians and gay men.

In 1961, all 50 states (as well as Puerto Rico and the District of Columbia) had sodomy laws on the books. Since then, legislatures in 26 states (including all of the states bordering on Minnesota) have repealed their sodomy laws. The ACLU has helped successfully challenge sodomy laws in Kentucky, Tennessee, Montana, Georgia and Maryland, arguing that they violate state constitutions.

In addition to Leslie Cooper of the ACLU Lesbian and Gay Rights Project, Teresa Nelson of the Minnesota ACLU and Timothy Branson, from the Minneapolis law firm of Dorsey and Whitney, are attorneys on the case challenging Minnesota’s sodomy law.

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