N E W O R L E A N S, July 7, 2000 -- A divided state Supreme Court has upheldLouisiana’s 195-year-old sodomy law, under which consenting adultscould receive up to five years in prison for engaging in oral oranal sex.
The state constitution’s privacy clause does nothing to protectthose who could be prosecuted, the 5-2 decision said.
“Simply put, commission of what the Legislature determines asan immoral act, even if consensual and private, is an injuryagainst society itself,” Justice Chet Traylor wrote for themajority. “A violation of the criminal law of this state is notjustified as an element of the ‘liberty’ or ‘privacy’ guaranteed bythis state’s constitution.”
In their dissent, Chief Justice Pascal Calogero Jr. and JusticeHarry Lemmon said the sodomy law fails to protect against unwantedsexual behavior and represents an intrusion of government intocitizens’ homes.
“The only apparent purpose of the prohibition is to dictate thetype of sex that is acceptable to legislators,” Lemmon wrote.“Two married persons should be able to choose how they conducttheir nonpublic, voluntary sexual relations in the security oftheir own home; a law that takes that choice away from them is anintrusion by the legislative branch that is constitutionallyintolerable.”
Calogero added that the government has no legitimate interest orcompelling reason to regulate the sexual behavior of consentingadults.
Privacy Still An IssueThe ruling did not affect a pending civil lawsuit, filed bygay-rights advocates, challenging the sodomy law on differentissues.
The majority said Thursday’s ruling, as a practical matter, willhelp put sex offenders in jail without intruding on the privatelives of consenting adults.
If an act of sodomy “is truly consensual and private, it wouldbe impractical to enforce the statute against the participants,since both would be guilty of the crime of sodomy and,consequently, there would be no victim to file charges andinstitute a prosecution,” Traylor wrote.
“If the act takes place in private, and one of the participantsfiles criminal charges against the other, it can be subject toprosecution as a nonconsensual act,” he continued.
Traylor was joined by Justices Catherine “Kitty” Kimball,Walter Marcus Jr., Jeffrey Victory and Bernette Johnson. JusticeJeannette Theriot Knoll did not sit on the panel that decided thecase.
Inspired By a Criminal CaseTraylor’s reasoning dealt precisely with the criminal case thatled to Thursday’s decision.
Mitchell Smith had been accused of assaulting a woman in a motelroom. Prosecutors contended that the woman was too intoxicated togive voluntary consent. Both Smith and the woman testified thatthey engaged in oral sex voluntarily. The judge convicted Smith ofthe lesser charge of crime against nature, still a felony, and gavehim a suspended three-year jail sentence.
The 4th Circuit Court of Appeal overturned Smith’s conviction,saying the crime against nature law violated privacy rights whenapplied to private contact between consenting adults.
Thursday’s Supreme Court ruling reinstated Smith’s conviction andsentence.
The court also upheld, by a 6-1 vote, a portion of the sodomylaw that sets a tougher penalty for commercial oral sex than forprostitution.
Gays and Lesbians Targeted?Calogero cast the lone dissenting vote. Commercial oral sex ispunishable by up to five years in prison, while prostitution —defined as offering intercourse for money or trade — is amisdemeanor with a maximum sentence of six months.
Several accused prostitutes who challenged the disparity insentences allegedly offered undercover police officers oral sex formoney.
Calogero said the maximum five-year prison term is excessive.
A judge had thrown out the accused prostitutes’ indictments,which the justices reinstated.
Just as the constitution allows differentpenalties for drug dealers depending on the drugs they sell, Traylor wrote in his decision, different sex offenses can be punished accordingly.
The pending civil lawsuit, filed in Orleans Parish CivilDistrict Court in 1994, challenges the law both on privacy groundsand on the grounds that it unfairly targets gays for punishment andlegitimizes hatred of homosexuals.
Orleans Parish Civil District Judge Carolyn Gill Jefferson threwout the law in March 1999 on privacy grounds.
The state has appealed to the state Supreme Court, arguing thatgay men and lesbians choose their sexual orientation and that thelaw is needed to promote marriage and encourage procreation. Thestate also contends it has the authority to outlaw immoral conductand impose penalties for engaging in it.