Louisiana Justices Hear Arguments In Sodomy Conviction Appeal
Baton Rouge Advocate,
April 12, 2000
525 Lafayette St., Baton Rouge, LA, 70821
Fax 504-388-0371
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By Joe Gyan Jr., New Orleans bureau
NEW ORLEANS – Louisiana’s 195-year-old sodomy law, which makes
noncommercial oral and anal sex between consenting adults a felony punishable by up to
five years in prison, is an unconstitutional violation of privacy, an attorney for a man
convicted under the law told the state Supreme Court on Tuesday.
"We don’t have police officers in our bedrooms; we have the state in our
bedrooms," Gretna attorney Byrne Dyer III, who represents Mitchell Smith, argued
during a hearing at the Supreme Court.
But Orleans Parish Assistant District Attorney Valentin Solino, who said privacy rights
were not argued at Smith’s criminal trial, urged the justices to hold off ruling on
the sodomy law’s legality until a civil court attack on the law makes its way to the
high court.
The civil case involves a 1994 lawsuit filed by several gay men and lesbians and the
Louisiana Electorate of Gays and Lesbians. The suit raises privacy concerns but also
contends that the sodomy law unfairly targets gays for punishment and legitimizes hatred
of homosexuals. The law applies equally to heterosexuals and homosexuals.
In that case, Orleans Parish Civil District Judge Carolyn Gill-Jefferson threw out the
law in March 1999 on privacy grounds. The state had argued that gay men and lesbians
choose their sexual orientation and that the law is needed to promote marriage and
encourage procreation. The state also contends it has the authority to outlaw immoral
conduct and impose penalties for engaging in it.
The state Supreme Court also heard Tuesday from attorneys for several accused
prostitutes who argued that the sodomy – or "crime against nature" –
law punishes accused prostitutes more severely for soliciting oral sex rather than
intercourse. The accused prostitutes allegedly offered undercover police officers oral sex
for money.
Under the crime against nature law, commercial oral sex is punishable by up to five
years in prison. Prostitution, defined as offering intercourse for money or trade, is a
misdemeanor with a maximum sentence of six months.
"The Legislature says oral sex is different from vaginal sex," Solino argued.
Attorney Cassandra Caswell, who represents one of the accused prostitutes, countered
that oral sex between a man and a woman "is not unnatural behavior." Attorney
Sharon Setzer, who represents two other accused prostitutes, argued that oral sex "is
a commonly practiced form of conduct." Setzer said the different penalties for
commercial oral sex and prostitution amount to cruel and unusual punishment in violation
of the Eighth Amendment.
The Supreme Court took Tuesday’s arguments under advisement without indicating
when a ruling would be issued.
In the noncommercial oral sex case, Smith was accused of raping a woman. Orleans Parish
Criminal District Judge Patrick Quinlan acquitted him of rape, but found him guilty of
"crime against nature" because both Smith and the woman admitted they engaged in
oral sex. Smith testified that he had consensual oral sex with the woman.
"Although not charged, she was equally guilty of the crime," Justice Jeffrey
Victory said during the hearing.
In throwing out the long-standing sodomy law in February 1999, a unanimous three-judge
panel of the 4th Circuit Court of Appeal said noncommercial, consensual oral and anal sex
is protected by the right to privacy in the Louisiana Constitution. The 4th Circuit judges
reversed Smith’s 1996 conviction and sentence – a three-year suspended jail term
and two years of probation.
The American Civil Liberties Union intervened in the case on Smith’s behalf,
arguing in legal papers filed at the high court that the state has no compelling or even
rational interest to justify criminalizing private, noncommercial sexual activity between
consenting adults whatever their sexual orientation.
The 4th Circuit judges said they examined constitutional cases on sodomy laws in other
states, rejecting arguments that sodomy is immoral, discourages procreation and leads to
short-lived and shallow relationships.
The judges also cited a 6-1 decision by the Georgia Supreme Court in November 1998 that
struck down that state’s 165-year-old sodomy law because of privacy rights guaranteed
in the Georgia Constitution. In 1986, the U.S. Supreme Court upheld Georgia’s sodomy
law by a 5-4 vote, saying consenting adults have no constitutional right to private
homosexual conduct. That decision prompted gay rights advocates to file suits in state
courts saying sodomy laws violate state constitutions.
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