| Tue Jul. 30, 2013 7:47 AM PDT
On Sunday the Baton Rouge Advocate reported on a disturbing trend: A full decade after the Supreme Court struck down anti-sodomy laws as unconstitutional violations of a right to privacy, the East Baton Rouge sheriff's department was continuing to enforce the state's version of the statute. Not only that, but it was going out of its way to do so, setting up stings to find and arrest gay men for the crime of having sex—even though the district attorney had pointedly refuse to prosecute those cases. "Whether the law is valid is something for the courts to determine, but the sheriff will enforce the laws that are enacted," a sheriff's department spokesman told the paper, apparently oblivious to the fact that a court had already made such a determination.
So how does Louisiana's arch-conservative Republican governor, Bobby Jindal, a possible 2016 presidential candidate, feel about the parish's continued enforcement of the invalidated sodomy law? He's been silent. His office did not respond to multiple requests for comment on Monday, nor has he previously commented on the sodomy statute.
The sheriff's department does have a point. 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 Sam Brownback left his state's sodomy statute out of a 2012 push to purge outdated laws.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.
Keeping anti-sodomy statutes on the books serves no real function, since the crimes are impossible to prosecute. Mostly, the laws' supporters just don't want their states to legally acknowledge that there's something OK about homosexuality. So-called crimes against nature, like other 19th-century relics such as mutton chops, DIY canning, and income inequality, are kind of "in" right now. In July, Virginia attorney general Ken Cuccinelli, who is running for governor as a Republican, launched a new website to defend his state's anti-sodomy law.
kevintkeith Yesterday 10:58 AM
ReplyDeleteThat explanation doesn't hold. Since the laws have been declared unconstitutional, they are null, whether or not the text remains in the state statute books. Unconstitutional laws have no force - they cannot be executed. This was the interpretation of previously-invalidated laws such as for segregation or anti-miscegenation, or (in the civil realm) racially exclusionary housing covenants: when the laws (or covenants) were declared unconstitutional, they became legally invalid as of that instant; it was not necessary for the states to individually repeal their laws, and the laws did not remain in effect in those states that did not repeal them.
There is no legal ground for arrest under an unconstitutional law, and the claim that the laws are enforceable "because they are on the books" is meaningless. This is nothing but malicious harassment, and it ought to be dealt with in that respect (including with compensatory damages for the victims) immediately.
Ilya Gerner Yesterday 11:01 AM
ReplyDelete"Keeping anti-sodomy statutes on the books serves no real function, since the crimes are impossible to prosecute."
But as the rest of the post points out, these laws DO serve a real function. They allow the East Baton Rouge Sheriff's Department to harass and humiliate gay residents.
Being arrested is no picnic, even if actual criminal sanctions aren't forthcoming. The handcuffs are real. The climate of fear for gays in Louisiana is real. It's not a legitimate or a moral function, but it's quite real.
1KarlHolder1 Yesterday 11:42 AM in reply to Ilya Gerner
ReplyDeleteAnd if you aren't very, very careful- you could get shot! In any case, the local PD going out on a witch hunt is a sure sign of very poor local leadership.
Darque Wing Yesterday 11:25 AM in reply to Ilya Gerner
ReplyDeleteAnd that's a very intentional effect, too. When Rick Perry and Ken Cuccinelli defend their states' anti-sodomy laws, when Bobby Jindal hushes up so his sheriffs can continue slapping the cuffs on their victims, the end result is deliberate and intended.
But hey, it's not like they would still be fighting against a Supreme Court ruling fifty years later, right? After all, sooner or later even right-wingers have to realize that SCOTUS rulings apply whether they like it or not.
Sure, just like Roe v. Wade.
nmestate Yesterday 12:56 PM in reply to Ilya Gerner
ReplyDeleteAnd the perp walk is real, and the names and pictures in the papers and the local mugshot rags.
mueizzathecat Yesterday 01:21 PM in reply to nyboy
ReplyDeleteStart a class action law suit against the State of Louisiana for false imprisonment and include every person who has been arrested and dragged into court. When it costs them enough to freak out the locals, because they have NO MONEY AT ALL..it will stop.
BrowncoatVoter Yesterday 02:53 PM in reply to mueizzathecat
They have no money now and it isn't stopping them.