N E W O R L E A N S, July 7, 2000 -- A divided state Supreme Court has upheld Louisiana’s 195-year-old sodomy law, under which consenting adults could receive up to five years in prison for engaging in oral or anal sex.

The state constitution’s privacy clause does nothing to protect those who could be prosecuted, the 5-2 decision said.

“Simply put, commission of what the Legislature determines as an immoral act, even if consensual and private, is an injury against society itself,” Justice Chet Traylor wrote for the majority. “A violation of the criminal law of this state is not justified as an element of the ‘liberty’ or ‘privacy’ guaranteed by this state’s constitution.”

In their dissent, Chief Justice Pascal Calogero Jr. and Justice Harry Lemmon said the sodomy law fails to protect against unwanted sexual behavior and represents an intrusion of government into citizens’ homes.

“The only apparent purpose of the prohibition is to dictate the type of sex that is acceptable to legislators,” Lemmon wrote. “Two married persons should be able to choose how they conduct their nonpublic, voluntary sexual relations in the security of their own home; a law that takes that choice away from them is an intrusion by the legislative branch that is constitutionally intolerable.”

Calogero added that the government has no legitimate interest or compelling reason to regulate the sexual behavior of consenting adults.

Privacy Still An Issue The ruling did not affect a pending civil lawsuit, filed by gay-rights advocates, challenging the sodomy law on different issues.

The majority said Thursday’s ruling, as a practical matter, will help put sex offenders in jail without intruding on the private lives of consenting adults.

If an act of sodomy “is truly consensual and private, it would be impractical to enforce the statute against the participants, since both would be guilty of the crime of sodomy and, consequently, there would be no victim to file charges and institute a prosecution,” Traylor wrote.

“If the act takes place in private, and one of the participants files criminal charges against the other, it can be subject to prosecution as a nonconsensual act,” he continued.

Traylor was joined by Justices Catherine “Kitty” Kimball, Walter Marcus Jr., Jeffrey Victory and Bernette Johnson. Justice Jeannette Theriot Knoll did not sit on the panel that decided the case.

Inspired By a Criminal Case Traylor’s reasoning dealt precisely with the criminal case that led to Thursday’s decision.

Mitchell Smith had been accused of assaulting a woman in a motel room. Prosecutors contended that the woman was too intoxicated to give voluntary consent. Both Smith and the woman testified that they engaged in oral sex voluntarily. The judge convicted Smith of the lesser charge of crime against nature, still a felony, and gave him a suspended three-year jail sentence.

The 4th Circuit Court of Appeal overturned Smith’s conviction, saying the crime against nature law violated privacy rights when applied to private contact between consenting adults.

Thursday’s Supreme Court ruling reinstated Smith’s conviction and sentence.

The court also upheld, by a 6-1 vote, a portion of the sodomy law that sets a tougher penalty for commercial oral sex than for prostitution.

Gays and Lesbians Targeted? Calogero cast the lone dissenting vote. Commercial oral sex is punishable by up to five years in prison, while prostitution — defined as offering intercourse for money or trade — is a misdemeanor with a maximum sentence of six months.

Several accused prostitutes who challenged the disparity in sentences allegedly offered undercover police officers oral sex for money.

Calogero said the maximum five-year prison term is excessive.

A judge had thrown out the accused prostitutes’ indictments, which the justices reinstated.

Just as the constitution allows different penalties for drug dealers depending on the drugs they sell, Traylor wrote in his decision, different sex offenses can be punished accordingly.

The pending civil lawsuit, filed in Orleans Parish Civil District Court in 1994, challenges the law both on privacy grounds and on the grounds that it unfairly targets gays for punishment and legitimizes hatred of homosexuals.

Orleans Parish Civil District Judge Carolyn Gill Jefferson threw out the law in March 1999 on privacy grounds.

The state has appealed to the state Supreme Court, arguing that gay men and lesbians choose their sexual orientation and that the law is needed to promote marriage and encourage procreation. The state also contends it has the authority to outlaw immoral conduct and impose penalties for engaging in it.