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Keeping Sodomy Laws on the Books

In 2003, the Supreme Court struck down state anti-sodomy laws in Lawrence v Texas, but the news that the police in Baton Rouge, Louisiana have recently been using those laws to arrest people should push those states that have not yet repealed them to do so now. But as Mother Jones points out, many states have refused to do so even if they aren’t enforceable:

The anti-sodomy statute is still on the books in Louisiana, and in 12 other states across the country. And in many of those cases, it remains on the books for a very particular reason: Republican lawmakers want it to. Lawmakers in Texas have quietly killed every legislative effort to erase its anti-sodomy statute (the one that was actually stricken down by the Supreme Court), which makes sense when you consider Gov. Rick Perry is on the record defending it, and the state GOP recently made a sodomy ban part of its official platform. Kansas Gov. Sam Brownback left his state’s sodomy statute out of a 2012 push to purge outdated laws. The last serious repeal push in Louisiana came in 2003, shortly before the Supreme Court decision, with opponents warning that legalized sodomy would lead to disease and child abuse—two things that, thanks to the sodomy ban, Louisiana had been mercifully free of for the last 207 years.

And even if they’re not enforced, they still have rhetorical uses. Here in Michigan, a local pastor used the fact that we still have such a law on the books to argue that it’s okay to discriminate against gay people because they’re “felons.” But such bigotries are often difficult to overcome. It took until 2000 for the last state (Alabama) to repeal its ban on interracial marriage, 33 years after it was struck down by the Supreme Court. And even then, more than 40% of the citizens voted not to repeal it.

Comments

  1. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    It was just barely over 10 years ago that Oregon repealed its constitutional provisions barring Black folk from owning property within its borders and freed slaves from even entering.

    Yeah, we had about 20% voting to keep the bans. And people had, in recent memory, used it to justify practices like redlining since, after all, whatever the constitutional guarantees about freedom of movement and Black citizenship, this was supposed to be a White state, after all.

    Looks like we queers will be waiting a long time for the straights to stop using the law against us…even when it’s ostensibly not opposed to our rights at all.

  2. Chiroptera says

    Theoretical legal question:

    Suppose for the sake of argument that the Supreme Court would reverse Lawrence. Would the anti-mind your own business laws now become enforceable again? Or would the legislatures have to re-enact those laws all over again?

    ‘Cause if the laws suddenly become good again (or if anti-decent human being advocates believe the laws become good again), I can see that as another motivation to resist removing the laws from the books.

  3. markr1957 says

    Strange how – in spite of the sodomy laws still being on the books here in Louisiana – Baton Rouge in particular, and Louisiana in general as the highest rates of STD’s and HIV/AIDS infections. How can that be?

  4. markr1957 says

    Strange how – in spite of the sodomy laws still being on the books here in Louisiana – Baton Rouge in particular, and Louisiana in general has the highest rates of STD’s and HIV/AIDS infections. How can that be?

  5. Canadian Yankee says

    Chiroptera:

    ‘Cause if the laws suddenly become good again (or if anti-decent human being advocates believe the laws become good again), I can see that as another motivation to resist removing the laws from the books.

    I do believe that’s exactly the argument that some legislators used in Montana in arguing against the repeal of the sodomy law (which eventually happened this spring) – they wanted to keep it on the books just so that there would be as little legal sodomy as possible after the eventual overturning of Lawrence.

  6. Draken says

    I’m told about 8% of the population is homosexual. Let’s assume they’re half/half gay and lesbian. Let’s also make the somewhat slippery (hah!) assumption that only the male 4% regularly engage in sodomy, and the lesbian 4% seldom do.

    That leaves us with the 92% of straight people, and some of these, too, like to try it from behind once in a while. It takes only very little searching on the interwebs to find verbal and pictorial descriptions of how to pleasure the partner in this way. Now, I have a strong hunch that in fact more straight people engage in sodomy than do gays altogether.

    You’re all under arrest. Please roll over and put… it where I can see it.

    (Caveat: I think some states incorporate fellatio and cunnilingus in the category of heinous acts described as ‘sodomy’. But I really don’t think that helps their case. Fingers up those of you who…)

  7. Loqi says

    Republican legislatures: publicly sticking it to those who privately stick it to each other. Because small government, you see.

  8. John Pieret says

    The Lousiana legislature just recently refused to repeal its law requiring “balanced treatment” of creation science and evolution that was struck down in Edwards v. Aguillard in 1981.

    Those Republicans and their focused lasers …

  9. Sastra says

    The laws are obviously being kept on the books for the purposes of Ceremonial Homophobia.

    Gay people shouldn’t have any objections to that. It’s just there to solemnize the rest of the laws.

    Really, if you want to see the occult magic lying behind these unenforceable laws, try repealing the ones against atheism.

  10. Trebuchet says

    I’m told about 8% of the population is homosexual. Let’s assume they’re half/half gay and lesbian. Let’s also make the somewhat slippery (hah!) assumption that only the male 4% regularly engage in sodomy, and the lesbian 4% seldom do.

    Depends on how the law defines “sodomy”. Pretty frequently it includes any form of oral sex.

  11. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    @Sastra:

    I think you’re referring to Ceremonial Homophobism.

    Which is distinct from Ceremonial Homophobasm, which requires a public spectacle and a lot of build-up: say the climax of a Michelle Bachman rally.

  12. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    @Draken, #7:

    Fingers up those of you…

    Please! Dinner first!

  13. timberwoof says

    “Keeping anti-sodomy statutes on the books serves no real function,” according to TFA.

    Yes, it does. Its function is to make it possible for cops to legally harass gay people. All those arrests, even though false and not prosecutable, will be on their records, and may force them to register as sex offenders even if nothing comes of it. And what fun harassment it can be, too: troll for queers on a Friday night, stick ‘em in the pokey until Monday morning when the judge comes in to work, and you’ve legally spoiled their weekend and possibly the rest of their life.

    God-damned motherfucking Rethuglicans!

    There. I feel better now.

  14. thascius says

    @14-I think the registered sex offender thing requires a conviction, not just an arrest, which wouldn’t apply here since the Supreme Court ruled these laws unenforceable. It could still be used for harassment as you point out. I think the real reason they’re keeping these laws is a hope that, sooner or later, a Republican president can put a fifth radical right wing judicial activist on the court and these laws will be ruled constitutional again.

  15. vmanis1 says

    Anti-sodomy laws serve as a blackmail mechanism, and nothing more. If I had been arrested there (not likely, because I find that sort of cruising a bit tacky), I’d have gone along with the officer, then quietly pointed out that the law under which I was arrested had been ruled unconstitutional 10 years before, and then mused about lawsuits for false arrest. This sort of scam works because most people who do that sort of cruising are extremely closeted, and therefore will go along with the cops.

    As for registering as a sex offender, that only applies if a person is convicted of a crime. Again, that’s why it’s important not to plead guilty, because then one becomes a sex offender. As I said, blackmail.

    BTW, I keep hoping that Virginia Dems will start publicizing Cuccinelli’s attempt to reconstruct the state anti-sodomy law. `He’s going to hire thousands of police to enforce the law, the Cooch Patrol will make sure you don’t engage in forbidden sex’.

  16. Karen Locke says

    I can’t imagine there haven’t been some irate phone calls from judges/DAs to police chiefs, along the lines of “Why are you wasting my precious time with this foolishness?”

  17. robnyny says

    New York still has a criminal sodomy law on the books, and it is used to prosecute forcible sodomy. The word “forcible” isn’t in the the statute, but the Lawrence case (actually an earlier case under New York law) invalidated the law only to the extent the sodomy was between consenting adults in private. So here in New York, the typical wording of a criminal charge is “sodomy and forcible rape.” Cucinelli may have ulterior motives for his proposed sodomy law, but the legal structure is hardly unprecedented.

  18. says

    Suggested DNC ad for 2014:
    (Image of American flag, apple pie and a mother, each with an “x” through it appears on the screen.
    (Announcer in scary voice): “They say they’re the party of freedom, but Republicans are coming to take your blow jobs. That’s right, American men, Republicans say they can decide your wife can’t give you that ‘special birthday present’ any more.
    “Our founding fathers, and every generation since, fought for your right to get a hummer. You know who else hates blow jobs? That’s right, Muslims. Republicans are just like the mullahs who would deny you that right. In actuality, the first tenet of Sharia Law is no blow-jobs. We looked it up. Really.
    “Don’t let them take your oral pleasure away, men. In November, vote for the pro-blow job party.”

    (Camera pans to a former president): “I’m Bill Clinton, and I approve the fuck out of this message.”

    Don’t let the radical, anti

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