Will Kansas Repeal Its Unconstitutional Sodomy Law?

OPINION

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An equal-rights group in Kansas is asking Gov. Sam Brownback to repeal the state's sodomy law, which was rendered unconstitutional by a Supreme Court ruling eight years ago.

The law -- which criminalized all unnatural sexual activities, like oral and anal sex, but was mostly used to target same-sex couples -- was invalidated by the Supreme Court's Lawrence v. Texas ruling in 2003, in which the court found that a similar law in Texas violated the due process clause of the 14th Amendment. It has been unenforceable since then, but it remains on the books, and the Kansas Equality Coalition believes that is an affront to thousands of law-abiding gay and lesbian Kansans.

Some legislators argue that, since the statute cannot be enforced and thus is not, ostensibly, infringing upon anybody's rights, it isn't worth the effort to repeal it. But this ignores the true impact of the law.

Thomas Witt, the chairman of the Kansas Equality Coalition, told the Lawrence Journal-World that the law technically criminalizes our relationships and leaves us open to harassment by unscrupulous authorities who may still make arrests under the provisions of this statute.

Unenforceable, Except When They Are

Witt's is a very valid concern. In one incident in 2009, two men were kicked out of a restaurant in El Paso, Texas, for kissing, and the police told them that it was against the law for two males and two females to kiss in public and that they could cite us for homosexual activity, Carlos Diaz de Leon, one of the men, said at the time.

In fact, 18 states still have sodomy laws on the books, and several still try to prosecute gay couples under those laws, in direct defiance of the Supreme Court. Even if the laws are ultimately unenforceable, they can be and are still used to harass same-sex couples.

Last year, Governor Brownback issued an executive order that created an Office of the Repealer and tasked it with identifying and repealing laws that were unreasonable, unduly burdensome, duplicative, onerous or in conflict, because, he said, such laws are detrimental to the economic well-being of Kansas, hinder the growth of liberty and opportunities for Kansans and Kansas businesses, and defy a common-sense approach to governance.

There seems to be no justification, then, not to repeal the sodomy law. But it is unclear whether Brownback, a conservative Republican and a vocal opponent of gay marriage, will do so.

State Repealer Dennis Taylor, who is also the secretary of the Kansas Department of Administration, is preparing a report for Brownback, based on months of research, in which he will recommend laws to be repealed. But neither Taylor nor Brownback will tell reporters whether the sodomy law will be added to the list.

Stop Me if You've Heard This One Before

The debate over sodomy laws in Kansas and the other 17 states that still have them bears a strong resemblance to the age-old debate over anti-miscegenation laws.

The Supreme Court found anti-miscegenation laws unconstitutional in 1967 in the Loving v. Virginia case. Its ruling invalidated the statutes in the 16 states that still enforced them at the time, but it was not until 2000 -- 33 years later -- that Alabama repealed the last anti-miscegenation law in the nation with a ballot measure called Amendment 2.

As recently as 1994, a high school principal in Wedowee, Ala., threatened to cancel the prom if interracial couples attended. His threat triggered a vicious controversy that culminated with an unknown arsonist burning the school down. Even in 2000, though Amendment 2 passed by a wide margin, 40 percent of Alabama voters wanted their state to keep its lifeless skeleton of de jure racism, as Gene Owens, a columnist for the Mobile Register, termed it.

Clearly, the law, though legally unenforceable, held symbolic value for many Alabamans -- not surprising in a state where only 31 percent of white voters supported interracial marriage in a 2000 poll.

The Supreme Court's 2003 Lawrence v. Texas ruling was a major step in the right direction in the fight against sodomy laws, just as the 1967 Loving v. Virginia ruling was a major step in the right direction in the fight against anti-miscegenation laws.

But the words of constitutions and laws have meaning whether they are enforced or not. They are statements of our identity and our values. And as long as discriminatory laws remain on the books, they will continue to legitimize bigoted views that should have been discredited a long time ago.

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