One such state is Louisiana, where gay rights groups contend police have used anti-sodomy laws to target gay men. But state lawmakers sided with religious and conservative groups in refusing to repeal the law last week.
The Supreme Court ruled in Lawrence v. Texas in 2003 that it is unconstitutional to bar consensual sex between adults, calling it a violation of the 14th Amendment.
Last year, police in East Baton Rouge Parish arrested gay men for attempted crimes against nature using the anti-sodomy law in a sting operation that caused a national outcry. The district attorney wouldn’t bring charges against the arrested men, saying the law was unenforceable.
This led Rep. Patricia Smith, D-Baton Rouge, to file the bill that would repeal Louisiana’s anti-sodomy law, saying it would make the system fairer and more efficient.
“We don’t need inefficient laws on the books,” she said.
Gene Mills, president of the conservative Louisiana Family Forum, said he was not surprised the bill failed considering the state’s culture.
“It’s not a Louisiana value,” he said of the repeal.
Others argue Louisiana lawmakers are going against public opinion and sending out a message that gay people are unwelcome in the state.
“It just shows how out of touch Louisiana representatives are,” said Patrick Paschall, senior policy counsel for public policy and government affairs at the National Gay and Lesbian Task Force.
Terry Young Jr., a 27-year-old gay man, said he cannot understand why Louisiana lawmakers would want to keep a law that was declared unconstitutional.
“It’s a reflection of the overall homophobia,” said Young, at the state Capitol last week.
While social conservatism plays a role in keeping unusable anti-sodomy laws on the books, Warbelow said lawmakers may also feel overwhelmed with having to rewrite statutes to accommodate concerns about aggravated sodomy.
Some anti-sodomy laws, including Louisiana’s, use one statute to prohibit both consensual sodomy and aggravated sodomy. Opponents of the repeal argued that it would eliminate protections from oral and anal sexual assault.
Warbelow said lawmakers could have addressed this concern by rewriting their sexual-assault statutes. While doing so might have been a daunting task, it would have been better than keeping the anti-sodomy laws and relying on courts to uphold the Supreme Court decision, she said.
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