Last edited: February 14, 2005

Sodomy Law Overturned

The Washington Blade, July 6, 2001

By Peter Freiberg

A Minnesota judge, who in May declared the states sodomy law unconstitutional, on Monday extended that ruling to include all adult Minnesotans, effectively ending enforcement of a law that dates back to the 1860s before statehood.

State District Court Judge Delila Pierce agreed to a request by the American Civil Liberties Union asking her to certify her earlier ruling as a "class action" so that it would impact the entire state, not just the small group of plaintiffs.

"There can be no question now: Minnesota’s sodomy law has been struck down, and cannot be invoked anywhere in the state," said attorney Leslie Cooper of the ACLU Lesbian and Gay Rights Project, which filed suit together with the ACLU’s Minnesota affiliate.

Teresa Nelson, the Minnesota affiliates legal director, said, "The initial decision [in May] gave us 98, 99 percent of what we were looking for in terms of having the law ruled unconstitutional, and the class certification brings that up to 100 percent."

In May, Pierce ruled that the statute "as applied to private, consensual, non-commercial acts of sodomy by consenting adults," was unconstitutional because it violated the right of privacy guaranteed by the Minnesota Constitution.

Pierces decisions handed sodomy law opponents their third major victory this year: In Arizona, Gov. Jane Hull (R) signed legislation in May repealing the statute there, and in Arkansas, a court struck down the law in March, sparking an appeal by the state.

The ACLU takes a state off its list of sodomy law jurisdictions if the statute is no longer legally enforceable, even if an appeal is pending. With this years actions by Arizona, Arkansas, and now Minnesota, the ACLU says, only 15 states now have legally enforceable sodomy laws on the books, several of which apply solely to same-sex relations. In 1961, all 50 states had sodomy laws.

Nelson and Timothy Branson, a volunteer attorney on the case from the Minneapolis law firm of Dorsey and Whitney, both doubt that the state will appeal the decision striking down the sodomy law.

"If I had to bet, I’d bet there wouldn’t be an appeal," Branson said. "Were very content for there not to be an appeal, but were certainly not afraid of an appeal."

Branson is confident that if the state does appeal to the Minnesota Supreme Court, the justices will uphold Pierce’s ruling.

A major reason why an appeal is not expected is the libertarian philosophy of Minnesota Gov. Jesse Ventura (Reform), one of the defendants named in the lawsuit along with Attorney General Mike Hatch (D) and the state itself.

Steve LeBeau, a spokesperson for Ventura, told the Blade Tuesday that there would definitely be no appeal of Mondays decision by the judge extending her ruling striking down the sodomy law to include all adult Minnesotans.

The state had been severely criticized by the ACLU for opposing the request for certification of the May ruling as "class action."

While the state argued that "class action" certification was unnecessary because the May decision rendered the sodomy statute unenforceable, the ACLU feared the ruling could have been interpreted as limited to the plaintiffs.

Pierce, in approving "class action" status, asserted that the plaintiffs "represent a broad spectrum of adults who engage in the conduct at issue heterosexuals disabled individuals, lesbians and gay men."

Charles Samuelson, executive director of the ACLU’s Minnesota affiliate, hailed Mondays ruling, commenting, "The sodomy law was declared unconstitutional, and the state had no good reason to say that it should be unconstitutional for some people, but not everyone. Were pleased the court agreed."

LeBeau, speaking for Ventura, said there had been no decision on whether to appeal the original sodomy law ruling. But when that ruling was handed down in May, a spokesperson for Ventura told the St. Paul Pioneer Press it was in line with the governors thinking, and LeBeau reiterated that to the Blade this week.

"The way [Ventura] describes it," LeBeau said, "is getting the government out of the bedroom. He agrees with the Republicans that you should get the government out of the board room, and he agrees with the Democrats that you should get the government out of the bedroom."

Ventura has taken a number of pro-gay stands, including seeking domestic partner benefits for gay state employees. He believes, said LeBeau, that sexual behavior is "a private issue for a person, and not an area for the government to say anything."

Still, the ultimate decision on appealing appears to lie with the attorney general. Betsy McAfee, a spokesperson for Hatch, said, "Were in the process now of reviewing our options and going over them with the governors office. No decision has been made."

The legal victory in Minnesota comes after years of efforts by gay activists and their allies to convince the state legislature to repeal the sodomy statute. Those lobbying efforts foundered as right-wing legislators managed to fend off challenges to the law.

As is often the case, Minnesotas sodomy law was rarely enforced. Attorney Branson said a search found at least 75 convictions during the 1973-98 period, but he thought many of those probably involved prostitution.

Nevertheless, the ACLU noted that as recently as 1997, a man in Beltrami County in northern Minnesota was prosecuted under the state sodomy law for private, noncommercial, consensual oral sex with a woman.

Gay groups have long maintained that sodomy laws not only symbolize oppression of same-sex relationships, but can be selectively wielded to discriminate against gay men and lesbians in child custody, employment and other areas.

The lawsuit was filed last year on behalf of seven individuals and the Minnesota Lavender Bar Association.

Among the plaintiffs were a quadriplegic married man who can engage only in the kind of sex that was criminalized by the statute; a lesbian attorney in Minneapolis who could face eviction from her townhouse because her lease prohibits illegal activity; a married Minneapolis elementary teacher who could lose his credentials if found to be violating a state law; and a divorced gay man who feared losing visitation with his children for violating the sodomy law.

Elsewhere on the sodomy law front, the Puerto Rico Supreme Court is now considering the ACLU’s challenge to the law there. A Texas Court of Appeals last month upheld that states sodomy law, but the decision is being appealed.

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