The Walking Dead: How the Criminal Regulation of Sodomy Survived Lawrence v. Texas.

• Author: Peterson, Jordan Carr

Table of Contents ABSTRACT 857 I. INTRODUCTION 859 II. THE REGULATION OF CONSENSUAL SEXUAL BEHAVIOR IN THE UNITED STATES 861 A. Laws Criminalizing Sodomy: A Brief History 861 B. The Affirmation of Sodomy Regulations in Bowers v. Hardwick 864 C. Lawrence v. Texas and the Promise of Deregulating Consensual Sexual Behavior 865 III. LIFE AFTER LAWRENCE: THE MIRAGE OF AUTOMATIC INVALIDATION 870 A. Implementing Judicial Decisions in a Decentralized Polity 871 B. Formal Changes to State Sodomy Prohibitions after Lawrence 876 C. Direct Enforcement of Sodomy Laws After Lawrence 882 D. Collateral Enforcement of Sodomy Laws After Lawrence 887 E. Sodomy Laws and the Persistence of Stigmatization 895 IV. PATHS FORWARD: HARMONIZING POLICY WITH THE LETTER AND SPIRIT OF LAWRENCE 897 A. Legislative Remedies 897 B. Judicial Remedies 899 V. CONCLUSION 901 I. INTRODUCTION

"This case thus requires us to decide when the threat of continued enforcement is enough to reanimate a zombie law and bring it from the statutory graveyard into federal court."--Pool v. City of Houston (1) How do laws die? The simplest answer is legislative repeal; if sufficient majorities in a legislative body agree, existing statutes may be excised from their jurisdiction's code by subsequently enacting a repeal bill. (2) The less simple answer is negative judicial review. American courts famously have the authority--of, some argue, extraconstitutional provenance (3)--to proscribe the enforcement of laws, policies, and practices enacted or implemented by coordinate public institutions if the reviewing court deems such actions unconstitutional. (4) The power to repeal affords legislatures the capacity to eliminate laws they disfavor rapidly, while judicial review sounds a more protracted death knell for unconstitutional laws and policies because court decisions are not self-executing. (5) To wit, although American courts enjoy expansive prerogative to participate in forming public policy by passing constitutional judgment on legislative or regulatory decisions, they lack the ability to ensure officials and institutions will adhere to their commands. (6) Consequently, though a judicial pronouncement that a given statute or class of statutes facially violates the Constitution likely spells the functional end for the laws in question, the peculiarities of American institutional design furnish them with an escape hatch to a fruitful afterlife.

In 2003, the Supreme Court of the United States held in Lawrence v. Texas that a Texas statute imposing criminal prohibitions on individuals who engage in same-sex sexual intimacy violated the substantive guarantees of due process by infringing on individuals' constitutional rights to liberty and privacy. (7) The decision engendered, however, neither the automatic repeal of state statutes criminalizing sodomy at the time Lawrence was decided, nor the cessation of police, prosecutorial, and administrative practices enforcing criminal prohibitions on sodomy. (8) While several state legislatures formally repealed their sodomy bans after Lawrence, this decision was not immediate. (9) Even now in some states that elected not to repeal their statutes criminally prohibiting sodomy after Lawrence, the imposition of criminal sanctions and administrative burdens pursuant to sodomy bans proceeds apace. These practices continue as some courts postulate that Lawrence only constrains the application of blanket prohibitions on sodomy to private, consensual sex, rather than enjoining the enforcement of such statutes altogether. (10) Any hope, then, that Lawrence would instantaneously render statutes criminalizing private, consensual sexual conduct inoperable--what I call the mirage of automatic invalidation--proves quixotic. (11)

This Article analyzes the legal means through which the criminal regulation of sodomy has survived its own intended death at the hands of the Supreme Court and contends that the survival of sodomy bans is enabled by both linguistic imprecision in the Lawrence decision along with the decentralized structure of American government. Part I traces the history of criminal prohibitions on consensual sexual behavior in the United States, and reads the Supreme Court's decision in Lawrence, for all its promise, as vivifying the afterlife of criminal prohibitions on sodomy. Part II examines the state of sodomy laws after Lawrence, and details how police, prosecutors, and judges offend the substantive thrust of that decision through the continued deprivation of rights and liberties pursuant to statutes that, on their face, violate the Lawrence rule. Part III offers remedial suggestions for legislative and judicial officials to bring policy in their jurisdiction into harmony with the letter and spirit of Lawrence. Part IV concludes by recommending legislation that clearly proscribes both the direct and collateral enforcement of sodomy bans.

2. THE REGULATION OF CONSENSUAL SEXUAL BEHAVIOR IN THE

   UNITED STATES

   1. Laws Criminalizing Sodomy: A Brief History

      Certain classes of sexual conduct (whether engaged in publicly or privately) have been regulated as "crimes against nature" in the United States and its colonial predecessors in British North America since the eighteenth century. (12) Indeed, the early Puritan settlers in New England--a group notorious for its willingness to express moral reprobation - have been said to have "reserved their strongest condemnations for sodomy." (13) These prohibitions, however, were neither English nor Puritan innovations, instead tracing their ancestry as so many prohibitions do to the expansive universe of behavioral regulations in the Levitical code. (14) While seemingly convinced that crimes against nature advanced any number of moral interests, legislators responsible for drafting these early prohibitive statutes predominantly failed to specify with much precision which sexual behaviors qualified as crimes against nature. (15) These imprecisions, in turn, afforded courts substantial latitude in exactly which nonprocreative sexual activities statutorily qualified for prohibition. (16)

      At some point in its history, every U.S. state has imposed criminal prohibitions on some array of sexual practices legally characterizable as sodomy, even if such acts occurred between consenting adults. (17) Though statutes regulating so-called crimes against nature originally applied only to anal intercourse and bestiality, by the end of the nineteenth century some state legislatures began to alter their criminal codes to include fellatio in their statutory definition of sodomy. (18) In those states whose legislators did nothing to amend the relevant statutes to criminalize oral intercourse explicitly, entrepreneurial judges and law enforcement officers began to interpret extant prohibitions on crimes against nature as proscribing fellatio. (19) As the United States population - and particularly its gay male population - grew increasingly urban over the course of the twentieth century, the number of arrests for sodomy rose drastically. (20) Recognizing that it represented a serious logistical difficulty for law enforcement officers to apprehend violators of crime against nature laws in flagrante delicto, (21) jurisdictions increasingly employed criminal prohibitions on the solicitation of sodomy as well as "degeneracy" to target both male and female sex workers for surveillance and harassment. (22) After the Stonewall uprising in 1969, and as social and political inequities experienced by the gay community came into somewhat sharper relief, enforcement of sodomy prohibitions in many major cities became less vigorous. (23) Whereas prior to Stonewall only Illinois had ceased to impose criminal sanctions for sodomy as a matter of state law, in the decade following the uprising sodomy was decriminalized by a further twenty-one states. (24) Nevertheless, by the 1980s, sodomy remained criminally punishable in about half of U.S. states, and - as Bowers v. Hardwick would demonstrate - statutes criminalizing sodomy continued to form the legal basis for deprivations of liberty as a result of adults engaging in private, consensual sexual behavior. (25)

   2. The Affirmation of Sodomy Regulations in Bowers v. Hardwick

      Because many states continued to impose criminal sanctions for sodomy well into the 1980s, a coalition of advocacy organizations joined lead counsel Laurence Tribe in a facial challenge to the constitutionality of Georgia's sodomy statute that was heard before the Supreme Court in 1986. (26) In Bowers v. Hardwick, the Supreme Court held that the Georgia law criminalizing sodomy did not violate respondent Hardwick's constitutional right to privacy as the Constitution does not confer "a fundamental right upon homosexuals to engage in sodomy." (27) Employing rational basis review, Justice White, writing for the majority, emphatically rejected the notion that extant privacy jurisprudence stood "for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription." (28) By construing the legal question much more narrowly than the Eleventh Circuit - which ruled in favor of Hardwick - the majority conceptually demarcated the conduct rendered criminally punishable by the Georgia sodomy law as meaningfully different from the sorts of intimate behavior protected by the constitutional right to privacy. (29)

      In holding that consensual, same-sex sexual activity between adults was not protected as a fundamental right under substantive due process, (30) the Court declined to extend the same sort of privacy-oriented constitutional protections as they previously had to activities including, but not limited to, nonprocreative marital intercourse, (31) nonprocreative vaginal intercourse outside of marriage, (32) and abortion. (33) The Court in Bowers found its limiting principle by purporting to interpret prior jurisprudence that protected these...