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
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