Montana lawmakers this week passed a repeal of the state’s sodomy laws. Why, when those laws are unenforceable, is this still a necessary and worthwhile use of lawmakers’ time?
Gay Montana Lawmaker: This Law Makes Me A Criminal
Montana, like several other states, still has a law that makes consensual gay sex a crime but, it seems, not for very much longer. This week, the Montana state House voted overwhelmingly to repeal the state’s sodomy law.
During a debate earlier this week, Representative Bryce Bennett (D-Missoula) gave an impassioned speech on how the current law makes him a criminal, and why repeal legislation (SB 107) is necessary.
“Under this law,” Bennett told the House, “I could be imprisoned for up to ten years for being part of a loving, caring relationship. [...] The fact that years later this language is still on the books means that our state still sees me as a criminal. The belief that I am a second-class citizen in a state I was born in and called home my entire life.”
Watch the speech below:
A number of Republicans voted with Democratic legislators to advance the repeal 65-34.
Rep. Duane Ankney (R-Colstrip) asked the Legislature to remove the language because it infringes upon personal rights, saying the law is an “embarrassment,” and that it “should go away … as quietly as it came.”
Still, a majority of Republicans opposed the repeal, with a number of legislators citing supposed concerns that a repeal of the sodomy statute was like promoting homosexuality, and that this could be used to somehow introduce gay indoctrination in schools.
The legislation now heads to Governor Bullock’s desk.
In the above video, Rep. Bennett makes the point that Montana’s sodomy statute is not being invoked by the police, yet he still feels marginalized because the law remains on the books — this despite the Supreme Court in 2003 ruling in Lawrence v. Texas that such bans are unconstitutional.
There is also evidence that bans like this continue to be the darling of anti-LGBT lawmakers and officials.
Which U.S. States Still Have Sodomy Laws?
If we discount Montana, 13 states still have some form of sodomy statutes.
Three states specifically outlaw gay sex: Oklahoma, Texas and Kansas. Montana’s former ban also specifically targeted homosexual couples.
Ten other states outlaw anal and oral sex, so while such bans could apply to heterosexuals, the statutes were historically used to aggressively criminalize homosexuality.
These states include Alabama, Florida, Idaho, Louisiana, Michigan, Mississippi, North Carolina, South Carolina, Utah and Virginia.
Are Sodomy Laws Really Still Invoked Today?
As fellow Care2 blogger Judy Molland recently noted, Virginia’s anti-gay attorney general Ken Cuccinelli has petitioned the 4th Circuit Court of Appeals to review the court’s own opinion that the state’s so-called “Crimes Against Nature” ban, which makes anal and oral sex a felony, is unconstitutional.
Cuccinelli has issued a slew of opinions against anti-LGBT ordinances and LGBT-rights protections, so while the above case does not specifically deal with LGBT rights, its wider implications are a concern.
Fortunately, the court has rejected the en banc appeal. At the time of writing it is not known whether Cuccinelli will appeal to the Supreme Court on this issue.
This is by no means an isolated incident, either.
The Texas Republican Party in 2010 published its party platform with the following language:
“We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.”
While the party has recently backed off from such explicit calls, it still resists repealing the sodomy statute.
Now this may all seem like bluster but, while cases like this are decreasing, sodomy laws are still invoked to deny LGBT people their rights and to stifle companies and business owners who are LGBT-affirming.
For instance, such bans have been used to prevent same-sex couples from adopting or gaining access to their own children after a marriage breakdown. They’ve also been used to deny people employment. Among the most infamous of cases is Georgia’s then-Attorney General Michael J. Bower, who rescinded a job offer to a lawyer because she was marrying a woman, and then successfully invoked the state’s sodomy law as a justification.
There is evidence dating from as late as 2009 that authorities in states like Michigan and Texas may also still be citing the so-called “legislative intent” behind the sodomy bans in order to prosecute, without legal challenge, consensual sex between men.
More than this, though, sodomy bans have one specific and chilling function quite apart from any explicit hounding: such laws send a very clear message to LGBT people that they are politically powerless and still a group to be marginalized and discriminated against.
So yes, the states should have better things to do than repealing these statutes. Nevertheless, repealing the intrusive and discriminatory bans remains an important step and a crucial safe-guard to eliminating opportunistic bigotry and affirming LGBT equality.
Image credit: Thinkstock.
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