JANUARY 18 . 2002 • Q-NOTES 13 Preparing for Supreme Court case: sodomy law update Lambda Legal Defense and Education Fund will hold Town Meetings in 13 states before Supreme Court hears case North Carolina and South Carolina still have sodomy laws on the books criminalizing consensual oral and anal sex between homo sexual couples and heterosexual couples. As recently as the early 1960s, all 50 states had some sort of criminal law out lawing consensual sodomy. Today, a small handful of states do. Lambda Legal’s work has always emphasized legal challenges and advocacy against such laws — because of both their direct and indirect harm to gay people. Lambda Legal is determined its efforts will not stop until all of the states are “free" — of these laws, denying consensual sex in one’s own home. Generally, these sodomy laws criminal ize oral or anal sex. between consenting adults including in the privacy of their homes. Direct criminal enforcement of these laws against private activity between con senting adults is rare, but even without enforcement such laws stigmatize certain forms of sexuality. The laws are used by police and prose cutors to support "solicitation” arrests, often in the context of sting operations targeting gay male cruising places. The laws very commonly function as an irrational excuse for denying lesbians and gay men basic civil rights and equal treatment. While most sodomy laws, as written, apply to everyone — regardless of marital status, gender or sexual orientation — they are disproportionately invoked against les bians and gay men. Sortie states have made this discriminatory focus explicit. This differential application occurs despite the facts: • those forms of sexuality are common among both heterosexual and gay cou ples, and • conversely, a lesbian or gay couple with a sexual relationship is not neces sarily violating such a law. In the minds of many, however, sodomy laws uniquely brand lesbians and gay men as “criminals.” Our infamous South In North Carolina, South Carolina and Virginia, for example, such laws have pro vided a basis for denying child custody and visitation rights to lesbian mothers or gay fathers. in Florida, Georgia, and Texas, sodomy statutes have been used to deny employment. Indeed, sodomy laws have been put forward as a purported rationale against enacting civil rights laws that bar discrimination based on sexual orientation. In this way, the sodomy laws very broadly subject lesbians and gay men to second-class citizenship. In the most infamous civil rights case involving a gay plaintiff, the Supreme Court upheld Georgia’s sodomy law against a fed eral right to privacy challenge in Bowers v. Hardwick That decision was widely criticized, and since then the Georgia’s own Supreme Court overturned the law. State appellate courts in Montana, Kentucky, and Tennessee also have interpreted their state constitutions to prohibit the criminalization of consensual, private oral or anal sex between adults. The Texas Law Now the US Supreme Court has agreed to hear Lambda Legal’s challenge to the consti tutionality of Texas’s “Homosexual Conduct” law. The Texas law criminalizes oral and anal sex only for same sex couples. Lambda represents two Houston men who were arrested for having consensual sex in the home of one of the men. The Court will revis it its decision in Bowers v. Hardwick to deter mine whether the Texas law violates the right to privacy under the US Constitution. It will also decide whether the law violates the fed eral right to equal protection. Depending how the Court rules, its deci sion could effectively decide the fate of all remaining sodomy laws in America. 4 States Prohibit Consensual Sex Between Same-Sex Partners only Kansas. Missouri, Oklahoma, Texas 9 States Prohibit Consensual Sex Between Hetero and Same-Sex Partners Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, Virginia 37 States are "Free" Alaska. Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia. Georgia, Hawaii, Illinois, Indiana. Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska. Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, Washington, West Virginia, Wisconsin, Wyoming 'Crry\:

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