Full Assault on Sodomy Laws
The repeal of Arkansas’s sodomy law and the arrest of six men at a
Missouri video store are just the latest examples of turmoil over these
archaic antigay laws
The Advocate,
August 20, 2002
By Chris Bull
It was a story that seemed more likely to come out of the Middle East than
the American Midwest: Uniformed police officers brandishing semiautomatic
weapons busted through the back door of an adult video store in Jefferson
County, Mo. Six men were handcuffed, taken to the local jail, and 12 days
later charged with violating the state’s ban on same-sex sodomy. Throughout
their night in jail the men were subjected to a barrage of antigay epithets
from police officers.
When the charges were filed in March, the men found that their names and
photographs were being featured on local TV news, which erroneously reported
that they had been charged with prostitution. (The Advocate is
withholding the men’s names out of respect for their privacy.)
"The defendants in this case were traumatized," says Denise
Lieberman, legal director of the American Civil Liberties Union of Eastern
Missouri, which is providing legal representation to at least three of the men
arrested that night. "The police were so intense that [the defendants]
thought they were being robbed, not arrested." One defendant’s wife
learned about her husband’s same-sex attraction through the TV news report.
Another defendant is in the middle of a custody battle in which the arrest is
being used against him. None of the men involved in the case responded to
interview requests by The Advocate made through Lieberman.
The men were charged with violating the state’s "sexual misconduct
law" in the police raid at Award Video, which has long been targeted by
local church and antipornography groups. Released from jail the day after they
were arrested, they now face a fine of $1,000 and up to one year in prison if
found guilty of the charges. No trial date has been set.
Seven additional store patrons, who police said were having heterosexual
sex when they were arrested, were released when the Jefferson County
prosecutor said he could find no state law under which to charge them.
The raid is a dramatic example of the ways in which sodomy laws, which ban
a variety of sexual acts among consenting adults other than vaginal
intercourse, are wielded against gay people. With the July 5 overturning of
the Arkansas sodomy law by that state’s supreme court, four states—Kansas,
Missouri, Oklahoma, and Texas—ban only same-sex sodomy. Eleven other states
ban anal and/or oral intercourse, whether between heterosexual or homosexual
adults. Although actual enforcement of these laws is rare, the statutes are
often cited to the detriment of gay men and lesbians in legal cases on issues
that include employment, custody, and marriage.
"The label of ‘criminal’ is used to justify additional
restrictions on jobs, housing, public accommodations, adoption, and all the
rights and responsibilities the rest of community takes for granted,"
Lieberman says. "The argument is always, ‘How can we sanction same-sex
relationships if the conduct is criminal? How can we justify including sexual
orientation in civil rights laws when it violates state law?’"
The movement to rid the nation of the archaic laws has made major inroads
since 1986, when the U.S. Supreme Court upheld the constitutionality of
Georgia’s measure in Bowers v. Hardwick. At the time 25 states had
sodomy statutes on the books. Since then laws in 10 states and the District of
Columbia have been repealed or invalidated.
The U.S. Supreme Court may have an opportunity to revisit the much-reviled Bowers
case. Lambda Legal Defense and Education Fund, a national gay rights legal
group, is considering an appeal of a 2001 Texas court decision upholding the
constitutionality of the state’s same-sex sodomy law. The case, which
involved two men arrested in 1998 while having consensual sex in a private
home, is the perfect test case for federal Supreme Court review, says Susan
Sommer, supervising attorney at Lambda. If the court grants review and
overturns the Texas law, it could knock out every remaining sodomy law in the
nation. Sommer says that trying to read the leanings of the nation’s highest
court is "guesswork" but insists, "We wouldn’t be considering
[the appeal] if we didn’t think we had a good shot at winning this
one."
If the current political climate is any indication, Sommer may well be
right. Existing sodomy laws are often dismissed as relics of the
jurisprudential past. Even antigay conservatives have denounced the laws as
affronts to individual liberty.
And the prosecutor in the Jefferson County case, Bob Wilkins, came close to
apologizing for invoking the statute. However, he told the St. Louis
Post-Dispatch that the action was needed to stop the "open and
notorious activities at Award Video."
Despite the growing discomfort with the laws, they are proving
extraordinarily difficult to overturn. "My sense is that the real frontal
confrontations of these laws have come to a virtual standstill in the
remaining states," says David J. Garrow, author of Liberty and Sexuality:
The Right to Privacy and the Making of Roe v. Wade. "As is the
case with abortion-funding litigation, the states where advocates of reform
have a good chance have been pretty much worked over. What’s left are states
with the most hesitant judiciaries and legislatures."
Missouri is a case in point. The statewide gay rights group PROMO was
founded in 1986 specifically to fight the same-sex sodomy law. Jeff Wunrow,
PROMO’s executive director, says his group has until recently received
little help from the legislature. "It got to the point where we stopped
filing repeal legislation because it was not going anywhere," he says.
"It’s a hard case, partly because the other side always points out that
it’s rarely enforced.
"We were also losing the battle of sound bites," Wunrow adds.
"We keep talking about getting police out of the bedroom, but then
legislators who support that argument get phone calls asking how they can
support anal sex. These are issues they don’t want to talk about."
Even so, Wunrow remains optimistic. Term limits will force a major
realignment of the state legislature in November, and the influence of
conservatives is on the wane.
And in February openly gay state representative Tim Van Zandt circulated a
letter to legislators enumerating the states that have repealed similar laws
in the past few years and calling on his colleagues to do the same.
Thirty-three of the state’s 162 representatives signed the letter.
"Time will tell if this strategy will be effective or not, but given the
amount of turnover this year, it seems worth the effort to try," Wunrow
says.
Paradoxically, the adult-theater arrests may come to represent the demise
of the law in the courts. Should the men be found guilty and their appeal
reach the Missouri supreme court, four of the seven state supreme court judges
seem sympathetic to a challenge based on the state constitution, Lieberman
says. "Of course, you can never say for sure how judges will rule on any
case, but the facts of this case show how unfair the law is—how it targets
one group of people over another," she says. "We couldn’t have
invented a more striking example of why this law is so wrong."
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