Last edited: December 06, 2004

Judge Extends Ruling in Sodomy Case to Minnesota Adults

Minneapolis Star Tribune, July 3, 2001
425 Portland Avenue, Minneapolis, MN 55408
Fax: 612-673-4359

By Pam Louwagie and Margaret Zack / Star Tribune

A court order striking down the state’s law that prohibits oral and anal sex now applies to all Minnesota adults under a ruling issued by a Hennepin County judge Monday.

The plaintiffs’ attorneys said that means consenting adults who engage in the sexual acts in private, noncommercial settings would be protected from prosecution.

District Judge Delila Pierce gave class-action status to a case in which eight plaintiffs sued the state challenging the sodomy law. In May, Pierce found the law was unconstitutional because it violated rights to privacy. Monday’s order gives her ruling statewide effect, attorneys for the plaintiffs contend.

"It’s a great day," attorney Timothy Branson said. If the attorney general doesn’t appeal Pierce’s ruling, he said, "the sodomy statute for private consensual acts is dead letter for all time."

A spokeswoman for Attorney General Mike Hatch’s office said only that officials were discussing the order with the governor’s staff and considering their options.

The law, on the books since the 19th century, made oral and anal sex illegal even when it’s private and between consenting adults, such as married couples.

With the backing of the Minnesota Civil Liberties Union, eight plaintiffs sued the state, the governor and the attorney general to challenge the law.

The plaintiffs included a lesbian attorney who argued she could have faced eviction from her home because her lease prohibits illegal activity, a quadriplegic married man whose only forms of sexual intimacy are unlawful, and a married Minneapolis teacher who could lose his license if he were found to be breaking state law.

Pierce, in a 13-page ruling issued Monday, said the plaintiffs represented a "broad spectrum" who engage in the conduct, and were adequate representatives for class-action status.

Attorneys for the state had argued that there was no need for class-action status because the original ruling was against the state and wouldn’t have allowed the state to enforce the law, anyway. If plaintiffs wanted to make sure nobody was prosecuted under the law, state attorneys said, they should have sued all county and city attorneys.

Branson said that wouldn’t have been practical.

Pierce could have ordered that all city and county attorneys not prosecute under the sodomy law, which would have covered all Minnesotans.

But because the attorney general objected to that approach, the plaintiffs obtained the same result by seeking class certification, Branson said. What is important is that all Minnesotans, not just the eight named plaintiffs, are safe from prosecution, he said.

He said he didn’t know how many Minnesotans the class would contain because past and future conduct are also included.

There have been maybe 75 convictions in 25 years based on the sodomy statute, he said. Often the individuals charged plead to a different crime, he said.

Teresa Nelson of the Minnesota Civil Liberties Union, which brought the lawsuit, called Pierce’s ruling very significant.

"We have 100 percent assurance that the law can’t be used against individuals engaged in consensual acts in private," she said. "I can’t stress enough this is not about nonconsensual sex."

Joni Thome of the Minnesota Lavender Bar Association for lesbian, gay, bisexual and transgendered lawyers and law students said the organization was happy with Pierce’s decision.

Jordan Lorence, an attorney who has done legal work on behalf of the Minnesota Family Council, said he thinks declarations concerning the broad impact of the ruling are questionable

"I’m not sure an appellate court would say local prosecutors have been covered," he said.

Attorney Greg Wersal, who accused Hatch of failing to present an adequate defense in the case and helped lead an unsuccessful bid to recall him, said he hopes Hatch will appeal the case now.

"I think that clearly this is an issue that should be in front of the Minnesota Supreme Court, not decided by some district court judge," Wersal said.

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