Statute debate is moot

We're about 10 years too late for this debate. That ship sailed in 2003. So all this talk about Idaho's so-called "sodomy law" as applied to non-heterosexual conduct is like debating whether to keep a "coloreds only" water fountain in a public park. It's moot - protected under the U.S. Constitution's Due Process Clause in the Fourteenth Amendment.

So sayeth the U.S. Supreme Court. In 1998 in my old home of Houston, Texas, someone called the cops on a neighbor. When the officer entered a residence he witnessed two adult men engaging in consensual sexual activity. Like Idaho, Texas was one of nine remaining states with a statute proscribing certain non-procreative, consensual sexual acts (gender not mentioned). After arrest and criminal conviction, appeals ensued and in Lawrence v. Texas in 2003, the Supremes reversed the convictions, citing such activity as a constitutionally protected liberty, regardless of gender.

Idaho courts (e.g., McGriff, Cook, and other Idaho cases) followed suit, citing Lawrence as the law of land when interpreting our "sodomy" statute, Idaho Code 18-6605 which makes "infamous crimes against nature" punishable by five years in prison. Before and since the Lawrence decision, Idaho courts interpreted "infamous crimes" to include sodomy and fellatio.

Many years ago statutes such as this one were also used to condemn the same conduct in heterosexual marriage, with the old argument that a state had an interest in protecting only procreative conduct as "moral;" but that was ended by courts before Lawrence. The First Amendment comes to mind. Americans have long known that mixing certain religious interpretations or mores with government officialdom is a slippery slope. Their separation is vital to a free society.

"Therefore, as Idaho's Supreme Court noted, Lawrence 'legalized the practice of homosexuality and in essence made it a protected practice under the Due Process Clause of the U.S. Constitution'." (Idaho's State v. Cook case, citing McGriff)

People just don't like the government in their personal and intimate relationships, and courts have confirmed this right to privacy. Consensual sexual conduct in a private setting is a protected constitutional liberty - that's settled law.

Before and since Lawrence, such statutes have still been (legally) used to enhance charges related to violent crimes such as rape, domestic violence, and abuse of minors - all distinguishable as crimes involving lack of consent. Courts state and federal have allowed such enhancements, given the underlying lack of consent and independent criminal acts. The difference Lawrence made across the U.S. is in removing their role as justification to punish private, consensual conduct within homes, making it crystal clear that gender made no difference.

Idaho courts have confirmed this. There is no question of law to debate. Using I.C. 18-6605 or any other statute to prohibit or punish real, potential, or perceived homosexual conduct has been decidedly unconstitutional in the U.S. and Idaho for 10 years (even longer in Europe, as the Supremes noted).

"The nation's laws and traditions... show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." (Lawrence v. Texas).

So why are we still talking about this? It's time to move forward.

Sholeh Patrick, J.D., is a columnist for the Hagadone News Network with degrees in international studies and law. Contact her at [email protected].