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» Scarleteen Boards: 2000 - 2014 (Archive) » SCARLETEEN CENTRAL » Sexual Ethics and Politics » "Supreme Court Strikes Down Texas Sodomy Law"

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Author Topic: "Supreme Court Strikes Down Texas Sodomy Law"
Ecofem
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I just read in the Washington _Post_ online about how today the US Supreme Court overturned the Texas sodomy law banning private consensual sex between people of the same sex. The case deals with two Houston men who were found guilty and fined for having consensual anal sex in one of their apartments five years ago.

I just wanted to share the good news in case others have not seen it. In a nation still plagued by homophobia and sexual conservativism (the possible overturning of Roe v. Wade, etc.) I am really glad for this legal milestone.

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"Tear up the cloak of indifference that you have wrapped around your hearts! Make up your minds before it is too late!" ~Sophie Scholl


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frozendreams
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i just heard about that too. i think its good.

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Gumdrop Girl
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I was going to bring up this matter in the Sodomoy laws thread we've already got going, but I went swimming instead.

Anyway I've always opposed anti-sodomy laws because they are bigoted and invasive. I am glad for the Supreme court's decision. but Ecofem, I gotta nitpick on your use of the term "sexually conservative."

That in of itself is not a bad thing. Some people want or need those sorts of boundaries in their lives. not everyone can handle being a happy libertine. but it's when laws are put in place to prevent mature, sane and consenting people from behaving as they see fit in the privacy of their own spaces, then I will gladly take issue.

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mundi faece repletum


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Ecofem
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quote:
but Ecofem, I gotta nitpick on your use of the term "sexually conservative."

I sometimes have trouble finding the most appropriate word to use when posting a message. By "sexually conservative", I meant it as in state sponsored abstinence-only education in public schools, the possible overturning of Roe v. Wade, and the like. Thanks for letting me clarify

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"Tear up the cloak of indifference that you have wrapped around your hearts! Make up your minds before it is too late!" ~Sophie Scholl

[This message has been edited by Ecofem (edited 06-26-2003).]


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Heather
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Well, I'd also hope that sexual conservatism didn't include discriminating aginst those who are queer, or seeing being queer as being "sexually adevnturous," et al.

...and I'd have to say, those sorts of attitudes do seem to fall under what I'd think of as sexual conservatism, Gummy. Not sure if I can make it mean otherwise to me.

New terminology is needed, maybe?


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logic_grrl
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quote:
Some people want or need those sorts of boundaries in their lives. not everyone can handle being a happy libertine.

What sort of boundaries do you mean in particular?

In the general sense, I think everyone has boundaries and limits of some sort. Everyone has some things they don't want to do, some things they don't choose to do, or whatever. And I think getting to know our limits and how to assert them is almost always an important part of being ready for sexual activity.

And that includes the "happy libertines" - which is why books on BDSM or polyamory devote so much time to the fine art of negotiation.

They have boundaries, just as the most vanilla or monogamous people do - some of their boundaries may just be in somewhat different places.

And if we're talking in terms of lifestyles, people don't necessarily divide neatly into "conservative" or "adventurous" (or "radical" or whatever the opposite of "conservative" might be). Some of those state sodomy laws are being violated by many a married heterosexual couple too .

I'm guessing that Ecofem was using "sexual conservatism" to refer specifically to the agenda of a particular section of the right-wing (I know some right-wingers are more libertarian in their approach to sexual issues).


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BruinDan
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quote:
Originally posted by Gumdrop Girl:
but it's when laws are put in place to prevent mature, sane and consenting people from behaving as they see fit in the privacy of their own spaces, then I will gladly take issue.

I'm with ya on that one. What I will be very interested to see is how this will affect incest (and if you really want to take it liberally, age of consent) laws down the road. Since the Bench managed to include teeny little sections in their majority opinion today which stipulated that regulation of personal activities behind closed doors is a no-no, how far will this be taken?

It's quite conceivable that legal challenges will be taken up against incest laws, and based upon this ruling they would have some case law backing them up. My thinking is that we will see something of that nature come down the pipeline in two or three years. Age of consent issues would be trickier because while they may occur behind closed doors, there is still strong legal sentiment that adults and children don't mix. Some of the lawyers at the office were mentioning this today, and there was a great and raging debate about how far the Court's interpretation could be taken. I disagreed with most of them because my gut feeling is that our current legal climate would have to change drastically before we'd get a loosening of the barriers between "adult" and "child."

As far as today's ruling goes, I think for many folks it was a no-brainer. I don't care if you're homosexual, heterosexual, pansexual or whathaveyou. The levels of intimacy between two consenting adults should have no legislation attached.

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BruinDan, "Number Three," FHOM

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Heather
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It was a really nice thing to have happen right before Pride weekend. Just had to say.

(As an aside, a Scarleteen benefit is in the process of being organized for October by a friend of mine in Austin. So, I'll likely soon get my tucas down to Texas and enjoy it sodomy-law free soon meself.)


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Milke
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Like legalising same-sex marriage? Good for queers and Toronto tourism alike.

But aren't laws against incest seen as existing to protect potential offspring, as well as morals? The issue seems quite a bit different from homosexual sex, I'm curious how it'll turn out too.

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Milke, with an L, SSBD, RATS, TMNTP, MF, CWCD, DNFTF

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BruinDan
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quote:
Originally posted by Milke:
But aren't laws against incest seen as existing to protect potential offspring, as well as morals?

You bet, smarty. That's the State's argument, anyway. But with the standard set by today's ruling, it would be very, very easy to strike those down. Under America's great system of judicial review, case law can be applied as broadly as lawyers and legislators want to try and take it. So if you've got a "behind closed doors" standard that we saw inklings of today, the ramifications will probably still be unfolding decades from now.

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BruinDan, "Number Three," FHOM

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Heather
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What I'd like to see happen, in that vein, is for laws which much more clearly define what informed consent is, how it can be given, and when it clearly cannot be given. If this was a catalyst for that, I think it'sd be incredibly beneficial in terms of rape law, child protection issues; in terms of the protection that previously, has been really dodgy for people with developmental diasbilities (thinking of the horrific case in 1989 in Glen Ridge, NJ), etc.

See that happening, Danny?


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Bobolink
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Is incest really an issue here? If we are talking about adult-child sex, surely the age of consent laws would apply as a child couldn't legally give consent to incest.

If two consenting adults decide to have an incestuous relationship, it it the business of the state?

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Dzuunmod
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quote:
Originally posted by Gumdrop Girl:
but it's when laws are put in place to prevent mature, sane and consenting people from behaving as they see fit in the privacy of their own spaces, then I will gladly take issue.

I'm glad that the law came down anywhichway it did. However, on the brief that I heard on the CBC tonight, they said that the court decided as it did because it was concerned about people's privacy. If that's so, then I think that's a really lousy reason for the law to be changed.

How about 'we have no right to make laws against what people do with their bums'? Isn't that a good enough reason to strike down this law?

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BruinDan
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quote:
Originally posted by Miz Scarlet:
See that happening, Danny?

If I recall correctly, that Glen Ridge case was the one where a group of high school athletes raped a female classmate who was developmentally disabled...I was 10 years old and I can remember my mom trying to shield me from seeing that on the news. I didn't really get it then, but man oh man, what a nightmare.

And actually, cases like that were cited up and down when state legislatures began to tout "informed consent" laws as the only way to go. That's why California's rape statute (see 261 PC) has provisions that make it a two-pager. You can't be thoroughly intoxicated and give consent, you can't be unconscious (duhhh) and give consent, you can't be under the influence of mind-altering substances and give consent, and you can't have severe retardation and give consent. Those laws aren't perfect, but they are all recent additions that were intended to bridge the gap first made prominent by things like the Glen Ridge incident.

As far as today's Court decision, (Lawrence vs Texas 02-102), I really don't think it will have much bearing on any of that just yet. I was actually surprised when I read the opinions (try reading Justice Scalia's, my jaw literally dropped) today, because so little was actually made of the consent issue. There was some talk of one's right to use one's rear end for whatever purpose one so desires, and there was some talk of privacy (which Justice Thomas ridiculed, in a very literal interpretation of the Constitution that even I was surprised to see)...but what ended up being the clincher was this "behind closed doors" policy that I think will prove to get bigger and bigger as the years roll by. Since there was so little mention of the role consent played in the initial case, there really can't be all that much made of it in further judicial review cases. Implications are a lot harder to base future litigation on than specific references would be, so while this particular decision could probably be used on a tangent, I'm not sure it would be able to directly offshoot itself into an informed consent topic. Which is really too bad, when you think about it.

Uncle Bobo, incest was not an issue here, if that's what you mean, but I do think it will become an issue soon enough. Last year there were a flurry of cases in which the parties tried to convince their local court that incest laws were an invasion of privacy. With today's ruling, they have some legal ammunition on their side. So my prediction that incest laws will be the next ones challenged had more to do with recent case history than with any specific instance out of this case. (And we're not talking about child-adult incest, you're right that those would still be illegal under current AOC legislation. Bluntly, we're talking about a 30-year-old guy wanting to nail his 26-year-old sister. AOC won't apply, but current incest statutes still would)

By the way, did anyone else find it rather humorous that ancient Senator Strom Thurmand died just hours after the Court deemed sodomy an acceptable practice?

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BruinDan, "Number Three," FHOM

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Ecofem
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quote:
However, on the brief that I heard on the CBC tonight, they said that the court decided as it did because it was concerned about people's privacy. If that's so, then I think that's a really lousy reason for the law to be changed.

Yes, Sandra Day O'Connor agrees with you on this. While five other justices (Anthony M. Kennedy, John Paul Stevens, David H. Souter, Ruth Bader Ginsberg, and Stephan G. Breyer) overturned it due to the right to privacy, Sandra Day O'Connor also agreed that the originial decision should be overturned but because it violated the right to equal treatment under the law, that state law was punishing homosexuals for committing the same acts (oral and anal sex) that is permitted, or at least ignored, when they occur between heterosexuals.

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"Tear up the cloak of indifference that you have wrapped around your hearts! Make up your minds before it is too late!" ~Sophie Scholl


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Heather
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It is too bad, Danny. I agree.

And it's too bad it hinged on privacy issues (both in terms of the possible ramifications as well as in terms of what it says overall), though to be frank, I'm not expecting any time soon -- especially in this administration -- to hear someone in charge outrightly say "It's as normal to be queer as anything else, and any laws which state or imply otherwise are based in simple fear and bigotry." And I wasn't expecting it from this, so that the law got struck down is good enough for me right now.

(Though if either Dean or Lieberman, up for the Dem. nod this time round, end up actually getting elected, we may just get to hear that sometime soon after all.)


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frozendreams
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i dont think it really matters why the law was overturned. even if it was due to privacy reasons instead of it being ok to have homosexual relations. the point is that it was overturned. that is a good thing. and beside the point that half of the people think that it is still bad or wrong to be homosexual it was an invasion of privacy. the only way anyone could catch you having sex is if they were spying on you or forced themselves into your home. which is wrong. so i dont really think it matters the reason it was overturned. things cant be how everyone wants them so you just take what you can get.

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Heather
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Well, while I'm happy the law is tossed regardless, it does matter.

Imagine, for instance, both the statement made and the ramifications if women were given the right to vote back when not because they were/are equal citizens to men, but because the idea was that as many people should be voting as possible.

That it was because of equality paved the way for the feminist movement, for anti-discrimination laws and guidelines, the works. Were it done for other reasons, we very likely would not be where we are today.

So, it often does make a sizable difference. Were sodomy laws tossed because those of us who are queer should be afforded the same rights and liberties straight people are, that'd really help open the door to dealing with other GLBT civil liberties issues. Were it tossed because consenting adults of any orientation have the right to make their own sexual choices and engage is whatever safe activities they wish to, that could make a huge difference in terms of legal problems with couples who practice BDSM, for instance.

I don't think it's asking to much to ask for equal treatment.


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frozendreams
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oh no i agree with what you are saying but it is hard to change peoples minds when they are set to believe certain things. i believe that no matter who you are everything should be equal but its not ever going to be like that. not everyone will agree with everyone else. and im not just talking about GLBT rights im talking about all rights to all issues in general. just because we (here at scarleteen and others) see it as a bad thing that it has nothing to do with the rights of gay people (im bi so i am in that category) that the law was overturned due to privacy but you need to take what you can get and saying that i mean that that is a big accoplishment from where we were. things will change slowly. but be happy that it is changing for the better that not at all. while the reasoning is not right in everyones opinion it is better doing it for the wrong reasons to begin with than not at all. because if they didnt see it was a violation to the right of privacy the law would never have been overturned.

i guess what im trying to say is that you have to start small to get what you want. and while this isnt done for the right reasons at least it is happening and can continue to grow into the right reasoning. just be patient and take what you can get and one day things should turn out ok and everything will be equal and satisfying to everyone (that it involved). this is a breakthrough for gay rights and it is slowly but surely starting to get somewhere.

sorry if this is making no sense and not coming out the way i want it to im trying to hurry because im spring cleaning. :O) a little late i know.

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Gaffer
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This is great and all, but I wonder how much this court ruling really means. Not only does the privacy justification disappoint me. I know that no law would keep me from being intimate in my own home with the person I love. So abolishing such a law means vicious neighbors can't get me arrested for it. Is that such a big deal?

Symbolically this means more, but it's only the first step. I think there a bigger and more practical things to be done, and when these are accomplished--when it's a non-issue--then I'll rejoice. These all depend on a premise of equality, and this ruling just doesn't set that precedent because the lawyers argued is as a privacy issue.

Right now I just feel a little bit like my dignity has been insulted. These laws should never have existed, revoking them isn't a triumph, it's a step out of a failure. But at least it's a step in the right direction.

Now I only worry about public backlash--this is going to stir things up a bit. I can't wait to hear what the reverend of Death has to say.


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Dude_who_writes
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Wow. I hadn't even had a single thought of questioning the motivations (legal, at least)

Regardless the outcome, there was no way I even imagined it would be possible for the court to come out and say, "we're over-ruling this law because it's okay to be queer, etc" because you have to look at the make-up of the court. Care of presidental elections for the last forty or so years, almost all apointments to the Supreme Court have been conservative, and most of the justices have been on the bench for twenty-plus years. So, while public opinion and acceptance will change, most often, the highest court in the land is still stacked with justices whom have the same ideals they had when they were apointed, and, honestly, our constitution leaves a lot of room for judicial interpertation. Ultimately, I see that as a double-edged sword. The document is elastic enough for change, but at the same time, it is also elastic enough for it to be bent to the opinion of a specific justice or official.

So, with that in mind, I'm rather thankful for the decision, ultimately. Reguardless of the reasons behind it.

Really, though, it irritated me when I was watching CNN when the anouncment came through and the opinions started piling in. I remember hearing someone from one of the conservative-right organizations immediately lumping the decision in with the potential future reversal of incest and bestiality laws. While I can see the open-ended decision leaving some potential for such challanges, although I'm quite confident that such laws will not overturned, the generalized lumping of such things into the same category got to me. Homosexual acts are hardly the same thing as incest or bestiality, and it irks the hell out of me that they're lumped together, because in no way are they even remotely linked. Bestiality should remain outlawed because it's impossible for an animal to consent to such an act. Incest should remain illegal because of the potential for physical deformaties in any offspring. But, consensual homosexual acts, as far as I can see, have no repercussions to society, the parties involved, or anyone for that matter. Maybe I'm nitpicking, but those comments still irritated me.

Anyway, just my rambly opinions on the subject.

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BruinDan
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quote:
Originally posted by Dude_who_writes:
Care of presidental elections for the last forty or so years, almost all apointments to the Supreme Court have been conservative, and most of the justices have been on the bench for twenty-plus years.

Uhhhh...not to split hairs too much, but only two justices have been on the bench for twenty-plus years. Justice John Paul Stevens was appointed in 1975, and Justice Sandra Day O'Connor took her seat on the Bench in 1981. That's a teeny minority, and far more justices were appointed in relatively recent years, from David Souter in 1990 to Steven Breyer in 1994.

And as far as how "conservative" they are, that probably depends on your interpretation of the word. Certainly Justices Ginsberg and Breyer lean left, while Justice Scalia leans to the right. Same goes the role Presidents play in making their appointments. While Presidents certainly seem to want to appoint Justices who will share their political idealogy, the end result is always a toss-up.

Take the rather liberal Justice O'Connor. She took her seat on September 25, 1981; as the first female member in the history of the Supreme Court. And who put her there? A rather conservative President by the name of Ronald Reagan.

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BruinDan, "Number Three," FHOM

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Dzuunmod
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quote:
Originally posted by BruinDan:
And as far as how "conservative" they are, that probably depends on your interpretation of the word.

Right. In other words: U.S. view of the judges=centrist/light-liberal; Rest of the West's view of the judges=hard right.

[This message has been edited by Dzuunmod (edited 07-18-2003).]


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Bobolink
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This will be outside the memories of most of you. Back in the 1950's, the Republican governor of California, Earl Warren, lost his bid for re-election to Democrat Pat Brown. Republican President Eisenhower then appointed Warren to be Chief Justice of the United States. Subsequently, the Supreme Court, lead by Warren proceeded to strike down most of the Jim Crow legislation in the United States, starting with racially segregated schooling to state laws that disallowed blacks from voting.

Warren was a conservative Republican, not a reactionary. He had the quaint idea that the United States Constitution meant what it said.

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We can't solve problems by using the same kind of thinking we used when we created them.

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Dude_who_writes
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More developments in the decision and how it relates to state's use of their existing laws -- or, more importantly, portions of their sodomy laws that were "saved" by a clause in there legal code which allows portions of existing laws to remain while others were struck-down by a court decision.

I really think that it brings up some fairly good topics for discussion. First, while many of the legal folk in Virginia say that the important aspect of this case is that the sexual acts took place in a public venue, (a privately-owned, but publicly-operated bookstore) and that it's irrelevant that the acts were homosexual in nature, saying that it would make no difference on the orientation of the perpetrators. But, the language of the law – the “Crimes Against Nature” statute – according to the article, does not distinguish between public and private activity. Some fear that the law could still be used to, “harass and intimidate gay men.”

Should there be a difference between sex acts taking place in private, or a semi-public venue?

That’s the outline of the article, anyway, and while I do have some opinions forming, I’m going to take the unusual step of waiting until I can hear a few opinions from someone with a better understanding of the law (Danny?).

(Edited to tidy up a bit)
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Tim, as in "Donate"
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"Hey boy, take a look at me. Let me dirty up your mind. I'll strip away your hard veneer and see what I can find..." -- Garbage, "Queer"

[This message has been edited by Dude_who_writes (edited 08-22-2003).]


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BruinDan
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I think this was one of those much-ado-about-nothing articles, really.

You've got a bunch of folks here who are being charged for sexual acts committed in the public domain. This would have happened regardless of the type of act. Since the acts they were undertaking (or soliciting) happened to be sodomy, charges were brought up using portions of the the infamous Crime Against Nature statute. Since there still elements of that crime which include prohibition of that act in a public setting, it is still valid at this point.

The Supreme Court's ruling struck down sodomy as the basis for criminal legislation. That said, it is now impossible to say "I'm not down with the anal sex, let's ban it." It is not, however, impossible to say "I'm not down with sex in public, let's enforce laws that prohibit it." Had the folks in question been engaging in male-female sex, oral sex, or even heavy petting, other lewd conduct statutes would apply. And so long as the punishments for those crimes are equivalent to the punishment for sodomy, there really isn't much to be said about it. Simply put, localities have the right to enforce certain public standards, one of them being that getting it on in the public domain is something that is discouraged to the point of being punishable by law.

As far as the Crimes Against Nature statute goes, part of it is no longer enforceable by virtue of the Supreme Court's decision. That part, as you may guess, is the in-private part. But public sodomy, like public intercourse, is a no-go like it has always been. There's really nothing new there at all.

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BruinDan, "Number Three," PHOM

Beware the naked man who offereth you his pants.


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