Louisiana Supreme Court to Consider Sodomy Law As States Nationwide Strike Down Similar Measures

Affiliate: ACLU of Louisiana
April 10, 2000 12:00 am

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NEW ORLEANS — As state courts nationwide continue striking down laws that criminalize private, non-commercial sexual intimacy between consenting adults, the Louisiana Supreme Court will hear arguments Tuesday on whether the state’s “crime against nature” law violates the right to privacy guaranteed in the Louisiana Constitution.

Last year, a state appellate court struck down Louisiana’s 195-year-old sodomy law, which makes oral and anal sex between consenting adults felonies punishable by up to five years in prison. The ACLU filed a friend-of-the-court brief with the Supreme Court of Louisiana.

“In our society, few matters are considered more private than sexual relations between consenting adults,” the ACLU brief says.

“When considering a public morality justification for [the sodomy statute], it is important for the Court to recall that prohibitions on interracial marriage, and the segregation of races generally, were values deeply imbedded in the social morality of many areas of the United States and were values that invoked both God and nature,” the ACLU brief continued. “But appeals to natural or theological ethics cannot constitutionally be used to legitimate laws whose sole function is to give effect to private citizens’ prejudice or conviction.”

The Louisiana Constitution explicitly guarantees citizens’ right to privacy. In February 1999, a three-judge panel of the Fourth Circuit Court of Appeal in Louisiana unanimously found that the state’s sodomy law is a “state action that imposes a burden on this constitutionally protected right.”

The appellate court was ruling in the case of a man who was charged with raping a woman, including a charge of “crime against nature,” or sodomy. He was acquitted of rape, but since both he and his accuser testified that oral sex took place, he was convicted of the sodomy charge. In reversing his conviction and sentence, the appellate court also made its ruling on the unconstitutionality of the sodomy statute. The state appealed the decision to the Louisiana Supreme Court.

In urging the state’s highest court to uphold the appellate court’s ruling, the ACLU noted that “during the past decade, state court after state court has struck down sodomy statutes like [Louisiana’s], holding that private, non-commercial sexual activity between consenting adults is entitled to constitutional protection and no governmental interest justifies denying this protection.”

In recent years, the ACLU’s Lesbian and Gay Rights Project has successfully worked to overturn sodomy laws in Maryland (1999), Georgia (1998), Montana (1997), Tennessee (1996) and Kentucky (1993). The ACLU’s challenge to Puerto Rico’s sodomy statute continues.

In 1961, every state in America had a sodomy law. Today, 13 states and Puerto Rico have sodomy laws that apply to heterosexuals and homosexuals (like Louisiana’s sodomy statute). Another five states have sodomy laws that apply only to homosexuals.

In its brief in Louisiana, the ACLU said a decision by the state Supreme Court to strike down the sodomy statute as a violation of the state constitution’s privacy guarantee “rather than plowing new ground, will be consistent with the overwhelming trend in this country’s courts and legislatures.”

The ACLU brief is available online at: http://archive.aclu.org/court/louisiana_v_smith.html.

For an overview of the sodomy laws throughout the United States see “Status of U.S. Sodomy Laws” at: http://archive.aclu.org/issues/gay/sodomy.html.

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