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SODOMY STATUTES AND THE HARM OF UNENFORCED LAWS:
Imagine if you lived in a town with the most restrictive sort of Sunday blue law, which essentially prohibited any public or commercial activity on Sunday other than going to church, with a penalty of six months in jail for the first offense and prison time for repeat offenders. The law was passed in 1780, and has not been enforced in 55 years. As a result, townsfolk engage in all sorts of activities that would be prohibited under the law, such as operating a movie theater, staging plays and sports events, opening the local stores and restaurants, playing games and picnicking in the park, publishing a newspaper, and anything else they might choose to do. There have been sporadic attempts to repeal the law, making the argument that a statute that is so routinely ignored and is never enforced should not be on the books. However, a vocal minority of religious conservatives who care deeply about the law have managed to block all attempts at repeal, arguing that even if the law isn't enforced, it reflects the fact that it is immoral not to honor the Sabbath, and the supporters of repeal are Godless hedonists who are opposed to one of this nation's great Judeo-Christian moral traditions.

This is the perfect analogy to the sodomy laws of many states, with the exception that some of the laws (though not all of them) apply only to homosexual sodomy and thus only criminalize the activities of a minority (other sodomy laws, however, apply to oral or anal sex between same-sex or opposite-sex couples, and thus criminalize the activities of almost every sexually active adult). Sodomy laws are almost never enforced against those having consensual sex, but they are difficult to repeal because the religious right is just about the only group that cares much about them, and they label anyone who attacks the laws as "anti-family" or anti-God, because their religious beliefs judge homosexual conduct to be a mortal sin. Of course, gay rights groups have attempted to repeal such laws, but in many states, gays have little or no political power, and they have bigger fish to fry anyway; the fact that the laws are generally not enforced means that they present a more theoretical threat as compared to the actual threat of things like employment discrimination and the denial of the benefits of marriage.

So the laws stay on the books. And they are not harmless. First of all, they do chill perfectly acceptable conduct. There are some people out there (I might call them "anal-retentive" but I don't want to make a bad pun here) who always try to follow the law, either because they are paranoid that the law will start being enforced or because they don't believe that it is right to knowingly break it. There is also always the threat that some day, a prosecutor, or a majority, might decide to start enforcing these laws again. Moreover, all unenforced laws (and there are a lot of them-- some having to do with silly or obsolete issues such as the duty to hitch your horse to the hitching post on the streetcorner) at the very least clutter our statute books, making it more difficult for an average citizen to learn what the law is and to conform his or her conduct to the law. Finally, the precise point of moral condemnation that makes the religious right support anti-sodomy laws is an important reason for their repeal-- the government should have no business engaging in the symbolic condemnation of private conduct solely on the ground of its supposed immorality.

As I said earlier, it is often difficult to overturn these laws in the legislature. What about in the courts? The problem with court challenges is originalism; the Constitution was written at a time when these statutes were enforced and were generally considered a legitimate exercise of state power. So no originalist worth his or her salt can say that a sodomy statute violates due process or equal protection. Nonetheless, those with more liberal judicial philosophies can find an abundance of theories for invalidating these laws, including that they violate due process by singling out a "discrete and insular minority" for harm or by invading the right to privacy, and that the violate equal protection by making irrational classifications between homosexuals and hetrosexuals, or between different sex acts. Indeed, a challenge to a Texas sodomy law has been brought to the US Supreme Court, and this may give the Court an opportunity to overturn its poorly-reasoned 1986 decision in Bowers v. Hardwick, where the Court upheld a Georgia statute with a 20 year prison term for sodomy on the ground that a state government has the power to criminalize anything the state feels is immoral. (Since that time, the Court's composition has changed and the Court has overturned a Colorado anti-gay rights statute with reasoning that certainly calls Bowers into question.)

But the political science questions are as troubling as the legal questions here. The fact that a democracy can produce laws that criminalize the harmless conduct of a majority of the voters certainly seems like a flaw in the system. One wonders whether, at least as to those laws that criminalize the sex practices of a majority of citizens, the answer might not be to start actually enforcing the laws. Then maybe the citizenry will learn that it is not wise to use the awesome power of imprisonment to make silly and anachronistic moral pronouncements.
posted by Dilan at 3:00 PM