Last edited: February 23, 2005

Sodomy Now Legal in S.C., Across U.S.

S.C. gay rights activists praise high court ruling that voids sodomy laws in 13 states, June 27, 2003

By Rick Brundrett, Staff Writer

South Carolina gay rights advocates hailed Thursday’s U.S. Supreme Court decision striking down sodomy laws nationwide as a ruling that they hope will end all discrimination against gays and lesbians.

“This is our emancipation proclamation,” said Ed Madden, a gay USC associate professor and volunteer with the S.C. Gay and Lesbian Pride Movement. “The state .’.’. cannot say I’m a felon and a second-class citizen anymore.”

Ruling in a Texas case, the normally conservative U.S. Supreme Court, in a 6-3 vote, said sodomy laws are an illegal invasion of privacy. The court reversed its position of 17 years ago in a Georgia case.

The ruling voids South Carolina’s approximately 300-year-old sodomy law and similar laws in 12 other states, including Texas.

“The (Texas) case does involve two adults, who with full and mutual consent from each other, engaged in sexual practices common to the homosexual lifestyle,” Justice Anthony Kennedy wrote for the majority. “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Justice Antonin Scalia, one of the most conservative justices, charged in his dissent that the court has “taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home,” he wrote. “They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

S.C. Attorney General Henry McMaster said Thursday the ruling’s “potential ramifications upon our laws are complex and troubling.” His office had joined Utah and Alabama in a legal brief supporting Texas’ sodomy law.

“Texas, just like South Carolina, has the fundamental right and authority as a sovereign state to enact laws prohibiting behavior deemed inappropriate and detrimental to the state,” he said. “The citizens of our state .’.’. have seen fit to have our law against sodomy in effect since the lord proprietors governed South Carolina.”

McMaster, a Republican, said gay rights advocates might try to use the ruling to overturn laws banning same-sex marriages, although he pointed out the majority of justices did not address that question.

Hector Vargas, the lawyer-director of the southern regional office of Lambda Legal, a national gay rights organization that challenged the Texas law, said Thursday that “it’s really early to tell how it will affect (same-sex) marriages and other issues.”

All 50 states had sodomy laws as of the 1960s. But states began abolishing those laws with the emergence of the gay rights movement, and about half had done so by the early 1980s.

South Carolina’s sodomy law—called in the criminal code the “abominable crime of buggery”—has been around since 1712. A person convicted of the felony faces a maximum five-year prison sentence and a $500 fine.

The Texas case involved John Geddes Lawrence and Tyron Garner, arrested in 1998 after police went to Lawrence’s Houston home on what was later determined to be a false weapons report and found them having sex. They were jailed overnight and each fined $200.

Unlike Texas, South Carolina’s sodomy law applies to gay and straight couples. Prosecution of sodomy in South Carolina has been rare in recent years. There were 7,609 gay and lesbian households in the state, the 2000 Census shows.

In his dissent, Scalia said state laws against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity” are all “called into question by today’s decision.”

Conservative state Rep. John Graham Altman, R-Charleston, said Thursday he’s concerned that the ruling—which he said he hadn’t read—could be interpreted to allow incest between consenting adults. He said there would be “a revolution in this country” if that happens.

Nekki Shutt, chairwoman of the S.C. Equality Coalition, an umbrella organization of gay rights and AIDS awareness groups, said the ruling means “consenting adults have the right of privacy in their homes to engage in any type of sexual practice that they choose.”

“This court recognized that this is a fundamental human right,” said Shutt, a Columbia lawyer and adjunct USC law professor.

For years, South Carolina’s sodomy law has been used to discriminate against homosexuals in employment, child custody, visitation and adoption cases, said Columbia lawyer Harriet Hancock, founder of the state chapter of Parents, Families and Friends of Lesbians And Gays, or PFLAG.

She predicted Thursday’s ruling will help end those practices, but said attitudes about homosexuals will change slowly in South Carolina.

“For years, it was OK to tell jokes about African-Americans,” she said. “With gays and lesbians, it’s still OK to tell horrible jokes about them. Hopefully, that will go by the wayside, too.”

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