# Even with Lawrence vs Texas, we should work to take sodomy laws off the books. **URL:** \ **Category:** Great Debates\ **Created:** [November 5, 2004, 5:02am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137 "2004-11-05T05:02:35Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![bashere](https://avatars.discourse-cdn.com/v4/letter/b/779978/32.png) [@bashere](https://boards.straightdope.com/u/bashere)\ **Post date:** [November 6, 2004, 2:30am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/21 "2004-11-06T02:30:01Z")
Let’s try that without the typos: > [@bashere](#): > > **Bricker** , I’m curious. Let’s assume that the city of Los Angeles, in an effort to improve its political structure and the quality of its voters, restricted the right to vote in city elections and on city referendums to women only. The measure quickly passes, 50.1% to 49.9%. What would be the appropriate step for the party that, by the way, simply has no hope of mustering a majority? ---
**Author:** ![bashere](https://avatars.discourse-cdn.com/v4/letter/b/779978/32.png) [@bashere](https://boards.straightdope.com/u/bashere)\ **Post date:** [November 6, 2004, 2:57am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/22 "2004-11-06T02:57:37Z")
> [@Huerta88](#): > > It’s a small enough concession to people who (apparently mistakenly) believed that they lived in a representative democracy But…um…those people are mistaken. We don’t live in a representative democracy. We live in a constitutional republic. This makes me a little uncomfortable, because the mistake is one easily rectified by the average high school civics class, but I’m going to risk sounding a little condescending when I ask if these people believe they could vote, via the legislator, to pass a law forbidding men from voting? Do you believe that we could? In another post you state: > [@Huerta88](#): > > Gee, Georgia wasn’t locking up 90% of its adult population before the Supreme Court intervened. The people of Georgia and Texas sure as heck didn’t seem to think they were suffering from Draconian sanction or a denial of their democratic rights. It’s called prosecutorial discretion, it happens (and has always happened) with any law, and it has nothing to do with whether such law is (a) constitutional or (b) sound policy. I could provide similar reductio ad absurdums for any number of unlawful conduct, including some such as speeding or file sharing or failure to declare income that may be statistically even more universally-breached (in some cases) by most adults (I know I was in a position to, and did, technically violate the speeding laws years before I would have even had the opportunity to violate any sodomy laws). The other half of the reason that technically-unlawful conduct isn’t universally prosecuted is because law enforcement doesn’t have unlimited resources or perfect knowledge, which likewise is a silly basis for throwing up our hands and saying that there’s no grounds for trying to make practice X unlawful. Do you believe that if all of the people who were fined were speeding were e.g. black that the courts would rule that this is “prosecutorial discretion”? “Well, we on’t have infinite resources, but we kept the ni, er, the blacks from speeding, so it must be a good law”. You recognize that such a suggestion would be laughed out of court, right? Does it pass the smell test for you? Ignoring blacks for the moment, let’s assume that the police pulled over only Mazda Miatas (the drivers of which are not a protected class in any meaningful way). Would that fall under “prosecutorial discretion”? Statistical fluke? Or would you perhaps suggest that the police had developed a wierd and inexplicable bias and were perhaps not actually doing their jobs, and were instead wasting your resources? ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [November 6, 2004, 7:20pm UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/23 "2004-11-06T19:20:55Z")
> [@Huerta88](#): > > Gee, Georgia wasn’t locking up 90% of its adult population before the Supreme Court intervened. Why not? > [@](#): > > The people of Georgia and Texas sure as heck didn’t seem to think they were suffering from Draconian sanction or a denial of their democratic rights. It’s called prosecutorial discretion, it happens (and has always happened) with any law, and it has nothing to do with whether such law is (a) constitutional or (b) sound policy. I could provide similar reductio ad absurdums for any number of unlawful conduct, including some such as speeding or file sharing or failure to declare income that may be statistically even more universally-breached (in some cases) by most adults (I know I was in a position to, and did, technically violate the speeding laws years before I would have even had the opportunity to violate any sodomy laws). The other half of the reason that technically-unlawful conduct isn’t universally prosecuted is because law enforcement doesn’t have unlimited resources or perfect knowledge, which likewise is a silly basis for throwing up our hands and saying that there’s no grounds for trying to make practice X unlawful. Sodomy laws weren’t prosecuted to the practical extent that the resources or knowledge of law enforcement allowed. They weren’t even prosecuted sporadically, in the manner of speeding tickets, where you can probably get away with it but sometimes the cops stake out a stretch of highway with a radar gun. They were prosecuted, if they were prosecuted at all, with more-or-less freakish randomness. As best I can tell, by the time _Lawrence v. Kansas_ was handed down they existed primarily as a rhetorical and political club with which to beat up on homosexuals (in the mistaken belief of many people that sodomy laws had something to do specifically with homosexuals, although the majority of the consensual sodomy laws on the books, like Georgia’s, say nothing about the genders of the parties committing this “crime”). This is not a question of an $80 speeding ticket, but (according to the Georgia legislature) of a felony on a par with [voluntary manslaughter](http://www.legis.state.ga.us/cgi-bin/gl_codes_detail.pl?code=16-5-2). What was the basis of “prosecutorial discretion” under which sodomy prosecutions did or did not place? And what _is_ the “sound policy” behind declaring behavior that probably 90% of the adult population of the state has indulged in to be a felony which should in theory be punished as severely as the unlawful killing of another human being–and then not actually enforcing it? (I realize that **Bricker** at least is not arguing in favor of sodomy laws, but only that they should not have been struck down by the courts. (The Georgia law was actually struck down the state supreme court before _Lawrence v. Kansas_.) I do wonder if there _any_ limits on the state’s police powers beyond the black letter provisions of the Constitution. Could a legislature constitutionally pass a law dissolving the marriages of all persons proven to be incapable of producing offspring, and require all persons who _are_ capable of fathering or bearing children who don’t voluntarily marry to enter into state-arranged marriages with persons with whom they can produce children?) Criminal laws–certainly laws which purport to send people to the state prison for up to 20 years–should be enacted in order to punish and thereby deter crimes. They shouldn’t be passed to cater to prejudice or religious dogma, then simply be ignored because actually doing anything to enforce them would be a grotesque miscarriage of justice. The remaining sodomy laws on the books should be repealed by the legislatures of the several states, not because the courts are forcing them to, but because it’s the right thing to do. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 7, 2004, 7:02am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/24 "2004-11-07T07:02:55Z")
> [@MEBuckner](#): > > This is not a question of an $80 speeding ticket, but (according to the Georgia legislature) of a felony on a par with [voluntary manslaughter](http://www.legis.state.ga.us/cgi-bin/gl_codes_detail.pl?code=16-5-2). What was the basis of “prosecutorial discretion” under which sodomy prosecutions did or did not place? In _Bowers vs Hardwick_, > [@](#): > > It was conceded at oral argument that, prior to the complaint against respondent Hardwick, there had been no reported decision involving prosecution for private homosexual sodomy under this statute for several decades Not only that, but even after the arrested Hardwick after catching him red handed in the act of sodomy, the state still decided not to press charges. What’s the point of having laws on the books if the state doesn’t want to enforce them? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 7, 2004, 7:05am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/25 "2004-11-07T07:05:37Z")
Bricker, isn’t there any mechanism for a court to declare a law as simply being dead due to lack of enforcement? Let’s say there’s a law about eating ice cream on sundays that’s been on the books for 100 years, and I’m the first person in as many years to get arrested for that crime. Can a court take that fact into consideration, or am I still out of luck? ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 7, 2004, 7:48am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/26 "2004-11-07T07:48:02Z")
What is it about the democratic process that so deeply repulses people? Why would going to a court be the **first** , rather than **last** , reaction in trying to repeal, on policy grounds, a law that we’re confidentally assured is universally recognized as out of date? On a couple of other topics . . . Maryland and Pennsylvania, two pretty populous states, have death penalty statutes on the book for murder. This extremely severe penalty has been imposed seven times since 1976 between the two states. Why? Because the people and prosecutors of those states aren’t comfortable with using it a whole lot more, apparently, but want it on the books as an option, to be used in some cases of murder, for instance those judged most heinous. Maybe you think that’s wildly unfair and arbitrary too, I don’t know, but all I’m telling you is that it’s not a legitimate **constitutional** basis for overruling a duly-enacted statute. I’ll help you out here: there’s an old English common law doctrine of desuetude. You could try to stick it to the strict constructionists by invoking this doctrine (hey, we love old English common law, right?). Unfortunately, it’s never been very widely applied even in England, and American courts have very rarely invoked or relied on this doctrine, which had its origins in an undemocratic time when the average English subject didn’t have much of a say anyhow in the enactment of statutes or common law doctrines and so didn’t lose much when an unelected judge nullified them. Talk of laws based on “prejudice or religious dogma” is just ad hominem argument. All laws are based on “prejudice” against the conduct sanctioned. Many, many American laws are based on “prejudice” that is morally informed and is in line with the doctrine of one religion or another. Your job is to convince your fellow citizens that a particular form of prejudice is, in fact, not worthy of being enacted as public policy. The last few posts seem to indicate a theoretical willingness to do this, through the democratic process in the legislature? How can I argue with this approach (other than to make my voice heard before any legislature of which I’m a constituent)? I don’t. The problem is that this is not, in the first instance, the approach actually taken by team sodomy. No, they went first to the Solons in Washington. I can’t escape the conclusion that this was because, no matter how long you talk about the “obvious” archaic-ness and unfairness and stupidity and universally-evident uselessness of sodomy laws, these advocates were too lazy, or too scared, to go before the several state legislatures and succeed in persuading them that the state ought to establish the fundamental right for, say, a dude to stick his penis in another dude’s rectum. I’d have certainly respected their right to **try** such an argument, but the reason we’re where we are today, and having this argument, is that we all know it’d have been an uphill climb to gain their fellow citizens’ consensus on this, so they took the shortcut. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 7, 2004, 7:56am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/27 "2004-11-07T07:56:58Z")
> [@Huerta88](#): > > I can’t escape the conclusion that this was because, no matter how long you talk about the “obvious” archaic-ness and unfairness and stupidity and universally-evident uselessness of sodomy laws, these advocates were too lazy, or too scared, to go before the several state legislatures and succeed in persuading them that the state ought to establish the fundamental right for, say, a dude to stick his penis in another dude’s rectum. I’d have certainly respected their right to **try** such an argument, but the reason we’re where we are today, and having this argument, is that we all know it’d have been an uphill climb to gain their fellow citizens’ consensus on this, so they took the shortcut. As a matter of fact, they did manage to gain a consensus. The number of states prohibiting the practice dwindled from 50 in 1960 to 24 in 1986 to 12 in 2003. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 7, 2004, 8:05am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/28 "2004-11-07T08:05:55Z")
Exactly. Democracy was working. The state citizens who were persuadable were persuaded (assuming that all the nullifications of state sodomy laws were accomplished through the legislatures and not through end-runs in state courts). Those who weren’t persuadable, weren’t. And what’s wrong with that? If Massachusetts or Hawaii wants to pass the Bang Bang Bang In Another Man’s Anus (to quote Ali G’s Borat) Act of 1996, how can I oppose that, unless I’m a citizen of one of those states? So there’s no problem, right? Wrong, apparently. If I’m winning a football game 38 to 12 in the second quarter, I can’t get the referee to declare victory for me because, gosh, I’m already ahead, but if we let the contest go on, it might not turn out exactly the way I want it. In this respect, at least, the NFL has a better understanding of what a fair contest means under our democratic system than does the Supreme Court. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [November 7, 2004, 8:15am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/29 "2004-11-07T08:15:54Z")
> [@Huerta88](#): > > It’s funny. Some of the smartest guys, and greatest political theorists and writers, of their time, **definitely meant** to provide a positive right to privacy (a word that OED tells me had been around since 1415), but, doggone it, despite months of wrangling over every detail of the Constitution, just plumb forgot to put it in. But they did put in some “strong implications” that they meant to, you bet you, no doubt about that. > > So that’s all right then. Luckily, they remembered to put the Ninth Amendment in. IIRC, it was to counter this exact argument. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 7, 2004, 8:33am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/30 "2004-11-07T08:33:44Z")
Wrong, they put it in to counter the argument that the Constitution had **taken away** existing rights from the plenary rights enjoyed by the State citizens. In other words, all the Ninth Amendment does is provide that if State citizens had recognized (or wished to recognize) a right to sodomy, or privacy, or whatever, then the enumeration of rights and prohibitions in the Constitution didn’t mean to, and didn’t, effect a revocation of that right. Fair enough – but no one here is arguing that privacy or sodomy is **forbidden or positively revoked by the Constitution** , so that’s not relevant. **Bricker** ’s already pointed this out and no doubt could explain a lot more eloquently than I can, but suffice to say, the Ninth Amendment doesn’t help in this case. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 7, 2004, 4:24pm UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/31 "2004-11-07T16:24:56Z")
> [@Huerta88](#): > > I’ll help you out here: there’s an old English common law doctrine of desuetude. You could try to stick it to the strict constructionists by invoking this doctrine (hey, we love old English common law, right?). Unfortunately, it’s never been very widely applied even in England, and American courts have very rarely invoked or relied on this doctrine, which had its origins in an undemocratic time when the average English subject didn’t have much of a say anyhow in the enactment of statutes or common law doctrines and so didn’t lose much when an unelected judge nullified them. Cite, please? It’s my understanding that desuetude is not available at common law to nulllify Acts of Parliament - it’s a civil law doctrine, not a common law doctrine, as this quotation from a letter from [Pollock to Holmes](http://www.commonlaw.com/HP.html) illustrates: > [@](#): > > **Pollock (January 17, 1903):** > > • As to the Scottish statute it is presumably abrogated by desuetude, which is recognized in Scots law though not by the Common Law as a real and effectual mode of repeal. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 7, 2004, 4:36pm UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/32 "2004-11-07T16:36:19Z")
Hmm. One source ([http://encyclopedia.thefreedictionary.com/Desuetude](http://encyclopedia.thefreedictionary.com/Desuetude)) says it was “not favored” in English common law, the other ([http://www.ebc-india.com/lawyer/articles/2004v4a2.htm](http://www.ebc-india.com/lawyer/articles/2004v4a2.htm)) says it was unavailable but had a (also rarely-applied) cousin called “non-observance.” So it was either rare, very rare, or non-existent, all of which I think are consistent with its not being a terribly viable grounds (by itself) for eighty-sixing a law in the U.S. Thks. for the info. on the distinction between Scottish and English law on this point – didn’t know that. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [November 7, 2004, 5:05pm UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/33 "2004-11-07T17:05:08Z")
> [@Huerta88](#): > > …the fundamental right for, say, a dude to stick his penis in another dude’s rectum. In these debates about sodomy laws, the issue is _ **always** _ being framed as being about homosexual acts. Why is that? Here is the Georgia sodomy law ([O.C.G 16-6-2](http://www.legis.state.ga.us/cgi-bin/gl_codes_detail.pl?code=16-6-2)) in its entirety; the parts which have been struck down (first by the Georgia Supreme Court, and later by the U.S. Supreme Court in _Lawrence v. Kansas_) are highlighted in red: > [@](#): > > (a)A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age. The fact that the person allegedly sodomized is the spouse of a defendant shall not be a defense to a charge of aggravated sodomy. > (b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. A person convicted of the offense of aggravated sodomy shall be punished by imprisonment for life or by imprisonment for not less than ten nor more than 30 years. Any person convicted under this Code section of the offense of aggravated sodomy shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7. > (c) When evidence relating to an allegation of aggravated sodomy is collected in the course of a medical examination of the person who is the victim of the alleged crime, the law enforcement agency investigating the alleged crime shall be financially responsible for the cost of the medical examination to the extent that expense is incurred for the limited purpose of collecting evidence. This law is no more about a “dude sticking his penis in another dude’s rectum” than it is about a “dude sticking his penis in a girl’s mouth” or “a dude licking a girl’s clitoris”. The majority of the laws struck down by _Lawrence v. Kansas_ were equally unspecific as to whether or not the law related to dudes with dudes, dudes with girls, or what many straight dudes are pleased to refer to as “hot girl on girl action”. The only remaining sodomy law still on the books in the United States, [10 U.S.C. 925 (Article 125 of the Uniform Code of Military Justice)](http://assembler.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000925----000-.html): > [@](#): > > (a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense. > > (b) Any person found guilty of sodomy shall be punished as a court-martial may direct. Once again, no exemption for heterosexual hanky-panky. In fact, heterosexual acts are specifically forbidden. If enforced, I daresay we’d have a pretty severe manpower shortage in the U.S. Armed Forces. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 8, 2004, 6:41am UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/34 "2004-11-08T06:41:43Z")
> [@Huerta88](#): > > Thks. for the info. on the distinction between Scottish and English law on this point – didn’t know that. You’re welcome. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 8, 2004, 5:41pm UTC](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137/35 "2004-11-08T17:41:50Z")
> [@Blalron](#): > > Bricker, isn’t there any mechanism for a court to declare a law as simply being dead due to lack of enforcement? Let’s say there’s a law about eating ice cream on sundays that’s been on the books for 100 years, and I’m the first person in as many years to get arrested for that crime. Can a court take that fact into consideration, or am I still out of luck? Well, yes and no. There is a general due process requirement that the law fairly apprise people of what conduct is forbidden. I suppose a court could find that because the ice cream law is an example of _malum prohibitum_, and not _malo in se_ (in other words, ice cream eating is not wrong in and of itself, but wrong on Sunday only because of the law forbidding it), and because the law was so archaic, uncommon, and so forth that it was an exception to the usual rule that ignorance of the law was no excuse, and that you didn’t form the requisite _mens rea_ to commit a crime. So it’s certainly possible for you, personally, to get off the hook because you simply didn’t know the law existed. But that doesn’t invalidate the law; it vitiates the law’s effect on you for this one act. And indeed, if you got off the charge once, you could hardly raise the “I didn’t know” defense if you were hauled into court for the same charge AGAIN. - Rick [Previous page](https://boards.straightdope.com/t/even-with-lawrence-vs-texas-we-should-work-to-take-sodomy-laws-off-the-books/273137.md?page=1)