Defying the national trend overturning laws that criminalize private consensual sex between adults, the Louisiana Supreme Court has upheld the state's "crime against nature" statute that carries penalties of up to five years in prison, Lambda Legal Defense and Education Fund said.
"This decision represents a serious abdication of the court's responsibility to impose constitutional standards, and its reasoning is intellectually dishonest," said Lambda Staff Attorney Stephen R. Scarborough, author of Lambda's amicus brief in the New Orleans case.
Writing for the 5-2 majority, Judge Chet Traylor wrote, "Simply put, commission of what the Legislature determines as an immoral act, even if consensual and private, is an injury against society itself." The decision was issued late Thursday.
The court relied on the 1986 United States Supreme Court ruling in Bowers v. Hardwick, upholding Georgia's sodomy law. But, that decision has been widely criticized and even rejected by Georgia's own top court, which overturned the state sodomy law in 1998.
A Texas appeals court last month found that the Texas sodomy law violated the state's constitution in a case brought by Lambda; the organization continues a legal challenge to the Arkansas sodomy law, having already helped overturn similar laws in Georgia, Kentucky, and Tennessee. Only 18 states and Puerto Rico still have sodomy laws on the books.
Scarborough, who helped defeat the Georgia law as an unconstitutional privacy invasion, noted that such laws often are used to discriminate against lesbians and gay men in employment, housing, and child custody.
The Louisiana ruling concludes four separate cases involving the 195-year old law that bans private consensual oral and anal sex between partners of the same or different sex. Lambda filed an amicus brief in one of those cases, Smith v. State, on behalf of religious groups and clergy opposed to criminalizing such acts in the name of public morality.
"The Court declined to second guess the legislature's determination of what is constitutional," said Lambda Legal Director Beatrice Dohrn. "While that logic defies the American principle of having checks and balances, it also obligates the citizens of Louisiana to make sure that their representatives move to end this gross invasion of their privacy."
Lambda joined the ACLU's Lesbian and Gay Rights Project in committing to end laws like Louisiana's. "This decision is obviously disappointing, but we have never looked at eliminating sodomy laws as short-term work," said Michael Adams, associate director of the ACLU Lesbian and Gay Rights Project.
Lambda Cooperating Attorney Jeffrey Reader, a solo-practitioner from New Orleans, assisted in Lambda's friend-of-the-court brief. Lambda is the nation's largest and oldest legal organization working on behalf of lesbians, gay men and people with HIV/AIDS. Headquartered in New York, Lambda has offices in Atlanta, Chicago and Los Angeles.