Sodomy Bans are Unconstitutional: Someone Tell Baton Rouge Police
Reports reveal that police in East Baton Rouge, Louisiana, have been using the state’s unconstitutional sodomy ban to target gay men.
Since 2011, at least a dozen gay men have been arrested in East Baton Rouge for agreeing to have sex with undercover officers, though not for money, after being propositioned in local parks and then retiring to the officers’ apartment, where they were then arrested.
Since the actual agreement was made in the park, the department has contended that this falls foul of the state’s prohibition on sexual activity in public and the state’s sodomy ban.
Louisiana’s 1805 so-called “crime against nature” law, R.S. 14:89 bans “the unnatural carnal copulation by a human being with another of the same sex or opposite sex.”
The law effectively bans consensual oral and anal sexual activity.
However, the United States Supreme Court ruled in 2003 in the case Lawrence v. Texas that sodomy bans, that is, the regulation of private consensual sexual activity, are unconstitutional and therefore cannot be invoked for prosecution.
Except the sheriff’s department has argued that because the law remains on the books, officers must enforce the law.
Spokeswoman Casey Rayborn Hicks is quoted as saying: “This is a law that is currently on the Louisiana books, and the sheriff is charged with enforcing the laws passed by our Louisiana Legislature. Whether the law is valid is something for the courts to determine, but the sheriff will enforce the laws that are enacted… The issue here is not the nature of the relationship but the location. These are not bars. These are parks. These are family environments.”
Firstly, the courts already have determined that the law is unconstitutional and therefore invalid. The majority ruling was unambiguous in this regard.
Second, the nature of the relationship is in fact the issue because straight couples have not been targeted by officers in this way: it is only gay men who have been propositioned. Furthermore, in absence of the sodomy ban, most if not all of the men who were propositioned appear to have done nothing illegal because they did not initiate.
As noted above, East Baton Rouge Parish Sheriff Sid Gautreaux was at first defiant over this situation but he has faced mounting criticism over this stance and, given that this wastes taxpayer money because any supposed offense on grounds of violating the sodomy ban cannot be prosecuted but must first be processed, Gautreaux has been forced to explain himself.
The sheriff has now said his department wasn’t aware of the 2003 landmark Supreme Court ruling invalidating the nation’s sodomy laws — this despite the fact that it made global headlines.
“To our knowledge, the Sheriff’s office was never contacted or told that the law was not enforceable or prosecutable,” a statement from the Sheriff’s Office claims.
Gautreaux is also freely admitting that mistakes have been made and that changes will now have to happen.
“Our agency made mistakes,” Gautreaux said in a statement, adding it was not the Sheriff’s Office’s intention to target gay men. “We will learn from them and we will take measures to ensure it does not happen again.”
The sheriff, who has been sharply criticized over his use of department resources, also said he has begun “a comprehensive evaluation of undercover operations made by our deputies” and vowed to “make changes to ensure better supervision, training and guidance.
“I have informed all employees of the Sheriff’s Office they are not to use these unconstitutional laws.”
This may or may not be a case of simple ignorance from the sheriff’s department, but recently there have been other cases where local anti-gay officials contend they must enforce anti-gay laws that remain on the books.
Most recently, county officials across California have said they will not recognize same-sex marriages because the state’s voter enacted 2008 constitutional amendment remains on the books despite the United States Supreme Court having let stand a district court ruling that the ban is unconstitutional and therefore cannot be enforced.
The power of the courts to overturn and void laws is well established, yet this seems to be a worrying trend, especially among states with strong appetites toward nullification or the refusal to recognize federal powers.
Another example comes in the form of Virginia’s attorney general Ken Cuccinelli, who has made it his personal mission to have Virginia’s sodomy law rendered enforceable, supposedly so that he can prosecute sex offenders. Given Cuccinelli’s established and staunchly anti-gay politics, LGBT rights advocates are concerned Cuccinelli wouldn’t be content to stop there though and would find ways to penalize same-sex couples.
It also speaks to why it is important that the 13 states that, like Louisiana, still have sodomy bans repeal them and why it is worth the legislative effort even though the bans are now unenforceable.
An attempt was made to repeal Louisiana’s sodomy ban during the last legislative session. It failed to gain traction. The East Baton Rouge sheriff’s department has now said it will support efforts to repeal the sodomy ban, presumably so that errors like this do not happen in the future.
However, lawmakers from the highly conservative Louisiana Legislature have already said they will not back a repeal, believing it goes against the will of the majority of the state’s population.
Image credit: Thinkstock.