Here's an interesting story coming to us from the Raleigh News & Observer tonight regarding two men recently arrested for committing homosexual acts.
Raleigh police are charging two adults for sodomy in private, although the U.S. Supreme Court appears to have outlawed such charges five years ago.Police on Saturday charged two West Raleigh men with a "crime against nature" for having sex early that morning. Each faces up to two years in prison if convicted of the Class I felony.
But that charge is unconstitutional, a state lawmaker says.
And the circumstances of the encounter are murky.
Raleigh police first charged Nelson Keith Sloan, 40, of Grand Manor Court, who called them to his apartment about dawn, saying he had been attacked.
Police later filed the same charge against Ryan Christopher Flynn, 25, of Glen Currin Drive.
The article further discusses the constitutionality of the matter:
North Carolina's "crime against nature" law doesn't apply only to same-sex partners. But a landmark 2003 U.S. Supreme Court ruling appears to forbid states from treating private, consensual, adult sex as crimes.
"The petitioners are entitled to respect for their private lives," the high court ruled in the case Lawrence v. Texas. "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."
As many of you probably know, anti-sodomy laws have been address and declared unconstitutional by the United States Supreme Court. The controlling case is that of Lawrence v. Texas (2003). The court rendered a 6-3 decision in favor of Lawrence. Justice Kennedy wrote the opinion:
Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3—18.
(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court’s initial substantive statement–“The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy … ,” 478 U.S., at 190–discloses the Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.
In what appears on the surface to be a domestic assault issue, the police took it upon themselves to arrest both men under North Carolina's archaic anti-sodomy law. G. S. 18B-1005.1 states:
18B‑1005.1. Sexually explicit conduct on licensed premises.
(a) It shall be unlawful for a permittee or his agent or employee to knowingly allow or engage in any of the following kinds of conduct on his licensed premises:
(1) Any conduct or entertainment by any person whose genitals are exposed or who is wearing transparent clothing that reveals the genitals;
(2) Any conduct or entertainment that includes or simulates sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, or any act that includes or simulates the penetration, however slight, by any object into the genital or anal opening of a person's body; or
(3) Any conduct or entertainment that includes the fondling of the breasts, buttocks, anus, vulva, or genitals.
(b) Supervision. – It shall be unlawful for a permittee to fail to superintend in person or through a manager the business for which a permit is issued.
(c) Exception. – This section does not apply to persons operating theaters, concert halls, art centers, museums, or similar establishments that are primarily devoted to the arts or theatrical performances, when the performances that are presented are expressing matters of serious literary, artistic, scientific, or political value. (2003‑382, s. 2.)
G. S. 14-177 states:
If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.
Also, in an unrelated manner, which only proves further the archaic nature of our sex laws, I found this as well:
G. S. 14‑186. Opposite sexes occupying same bedroom at hotel for immoral purposes; falsely registering as husband and wife.
Any man and woman found occupying the same bedroom in any hotel, public inn or boardinghouse for any immoral purpose, or any man and woman falsely registering as, or otherwise representing themselves to be, husband and wife in any hotel, public inn or boardinghouse, shall be deemed guilty of a Class 2 misdemeanor.
These arrest would seem to be a significant deviation from the constitutional issues decided in the Lawrence case. The arrests of these men is a disturbing deviation from what has seemed to be settle law. The fact that North Carolina's statutes still maintain anti-sodomy provisions, even after the Supreme Court's decision, is troubling enough in itself. However, it is the enforcement of the law that is an even more serious affront to Constitution.
It has been suggested that North Carolina's anti-sodomy statute has remained on the books in an effort to appease the Christian Right. I'm not sure if this is true, although I do know that many on the Christian Right take issue with the decision in Lawrence v. Texas. Let's hope that the charges issued in Raleigh are dropped, and no attempt is made to take this issue up again to the higher courts.