Even as the United States continues its historic move toward fairness and equity for gay people, antiquated anti-sodomy laws remain on the books in a dozen states. Theoretically, these laws were rendered unenforceable by the Supreme Court’s 2003 ruling in Lawrence vs. Texas, but apparently not everyone has received that message.
In the Lawrence case, the court declared that state laws banning consensual same-sex relations were unconstitutional. Yet somehow, between 2011 and 2014, 12 men were arrested in East Baton Rouge Parish in Louisiana under the state’s remaining anti-sodomy laws.
None of the men were ultimately prosecuted, no doubt because prosecutors realized that the charges wouldn’t stand up in court. But the arrests of men who had agreed to meet privately for consensual sex with undercover officers were deeply offensive and troubling. Then, when Patricia Smith, a member of the Louisiana House of Representatives representing East Baton Rouge, responded to the arrests by introducing a bill that would remove the anti-sodomy statutes, the House rejected the bill, 66 to 27. That outrageous vote took place last week.
Smith’s bill would have removed the language from so-called crime against nature and aggravated crime against nature statutes that outlawed “unnatural carnal copulation” between two consenting people. (Although the bill would have retained the part of one statute outlawing copulation between a person and an animal.) Opponents of the bill said it went too far by striking certain provisions involving sodomy by minors. But the bill kept intact criminal prohibitions against sodomizing people against their will, by force, or when they were too incapacitated to consent. Similarly, it would have kept in place a prohibition against sodomy between someone under 17 and someone else at least three years older.
Keeping an unenforceable law on the books isn’t a terribly big issue if the police and prosecutors understand that they may not use it. But if a state continues to arrest people under an unconstitutional law, and if the state legislature opts not to repeal that law when given the opportunity, something is wrong. It’s shameful that Louisiana did not clearly put itself on the side of justice and the U.S. Constitution.