After Sulfur and Flame: Anti-Sodomy Laws and the Fourteenth Amendment
On September 23, 2020, the American Civil Liberties Union of Idaho and accompanying civil rights parties filed Doe v. Wasden, a complaint for injunctive and declaratory relief before the U.S. District Court for the District of Idaho. [1] The plaintiff, an Idaho resident using the pseudonym John Doe, moved for a judgment to declare Idaho Code § 18-6605 facially unconstitutional. [2] The state law in question, infamously labeled as Idaho’s Crime Against Nature statute, criminalizes consensual oral and anal sex. As it pertains to Wasden, the statute also requires people convicted of a so-called “crime against nature” to register as sex offenders; the plaintiff was added to the registry for a decades-old conviction under a now facially unconstitutional out-of-state statute. [3] Doe’s conviction is a blatant violation of the Fourteenth Amendment’s Due Process Clause and patently disregards the Supreme Court’s 2003 ruling in Lawrence v. Texas. [4] In Lawrence, the Supreme Court overruled the precedent set in Bowers v. Hardwick (1986), which had held that anal sex received no constitutional protection. [5]
Doe v. Wasden unveils a haunting legal witch hunt on American privacy rights, particularly as they relate to individuals of marginalized identities. Indeed, Doe v. Wasden forms part of a much larger attack on the Due Process Clause, especially considering the recent confirmation of Justice Amy Coney Barret to the Court; under the new reality of a 6-3 Supreme Court majority emphasizing textualism and originalism, Wasden prophesizes a novel insecurity in American privacy and corporal autonomy that goes beyond the borders of Idaho. [6] Furthermore, the documented, intentional persecution of LGBTQ+ residents by the Idaho State Legislature suggests concerns that extend past the Due Process Clause and reach matters of equality of treatment.
The enforcement of Idaho’s Crime Against Nature statute after the Supreme Court’s overruling of the judgement in Bowers v. Hardwick is a glaring demonstration of constitutional neglect. In 1986, the Bowers ruling found that there were no constitutional protections for acts of sodomy, and, therefore, states could outlaw such intimate practices. Seventeen years later, in Lawrence v. Texas, the Court asserted that criminal convictions for adult consensual intimacy violate same-sex couples’ rights to liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment. On the specific Texas “Homosexual Conduct” law under scrutiny, Justice Anthony Kennedy, writing for the majority, found that “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” [7] Lawrence v. Texas leaves the matter clear: The Constitution tolerates no government intervention in the sex life of consenting adults, regardless of sexual orientation. Thus, as demonstrated, the Crime Against Nature statute at issue in Wasden is part of a larger American legal tradition in which the intimacy of same-sex couples has been criminalized by the state.
Idaho’s prohibition of oral and anal sex has existed in essentially the same form since before it was incorporated as a territory during the American Civil War. [8] Strict policing of homosexual activity is, as one might argue, woven into the very foundation of Idaho’s criminal court system. In 1955, Boise, the state capital, was torn into a storm of panic and suspicion over rumors of an extensive homosexual underground scene. [9] The Crime Against Nature statute was used to convict men involved in this “Boys of Boise'' scandal, primarily to ease the morally distressed Christian conservatives of the Gem State. The persecution of prominent men of Boise, in what may be considered the most forthright legal persecution of gay sex in the course of modern U.S. history, reveals an aspect of the Idaho statute, and similar anti-sodomy laws, that the judgement in Lawrence failed to denounce. [10] Indeed, while the Court did find in Lawrence that Texas’ “Homosexual Conduct” law violated the Fourteenth Amendment’s Due Process Clause, it did not explicitly find that the law violated the Fourteenth Amendment’s guarantee of the equal protection of laws. In accordance with the precedent established in 2003, Doe v. Wasden does not primarily deal with equal protection, but instead focuses on substantive due process. Given that anti-sodomy laws specifically target LGBTQ+ and same-sex partners in intimacy, this historical persecution in Idaho, especially given how it relates to Idaho Code § 18-6605, raises questions beyond the Due Process Clause that become a matter of equality of treatment. [11]
Efforts to strike down American anti-sodomy laws in the interest of equal protection are solemnly storied. In 2000, Matthew Limon was arrested a week after his eighteenth birthday for engaging in consensual sex with a male classmate three years his junior. [12] At the time, Kansas’s "Romeo and Juliet" law (K.S.A. § 21-3522) lessened the penalty for statutory rape if the case involved two teenagers. [13] The statute, however, only reduced the punitive severity for heterosexual couples. Limon was therefore excluded from the reduced severity offered by the statute and was convicted of criminal sodomy. The American Civil Liberties Union brought the case before the Supreme Court of the State of Kansas; in the 2005 case State of Kansas v. Limon, the Kansas Supreme Court held that the statute was unconstitutional as it violated the equal protection provisions of the U.S. Constitution. [14] A case like State v. Limon has persuasive implications for Doe v. Wasden; the decision in Limon found that criminalizing statutory rape between members of the opposite sex to a lesser degree than the same action committed by members of the same sex is unconstitutional under the Equal Protection Clause. Idaho’s current anti-sodomy law is weaponized disproportionately to criminalize the intimacy of same-sex pairs. While there is no explicit mention of gender identity or sexual orientation in the statute, the mere suggestion of a “crime against nature" is an implicit attack on the penetrative sexual practices of the LGBTQ+ community, and, thus, should be viewed as an infringement of the Equal Protection Clause of the Fourteenth Amendment. [15]
One may also look to Justice Sandra Day O’Connor’s concurrence in Lawrence v. Texas for further support to this idea. Justice O’Connor affirms that “the Equal Protection Clause ‘neither knows nor tolerates classes among citizens.’” [16] Applying this standard to Doe v. Wasden, the Idaho statute at the core of the case knows, tolerates, and targets specific classes among the citizenry. It is worth noting that in Lawrence v. Texas, the Texas statute under which Lawrence was convicted criminalized sodomy specifically between individuals of the same sex, and not those of opposite sexes. The statute featured in Doe v. Wasden makes no such outright distinction. Nevertheless, given Idaho’s judicial past on the matter and the greater frequency with which LGBTQ+ persons partake in anal sex, there are concerning implications to Idaho Code § 18-6605. Besides the apparent obstruction to John Doe’s right to due process, the case neglects an important aspect of the Idaho Code’s unconstitutionality: anti-sodomy statutes have historically been employed to harm LGBTQ+ people, as witnessed in the Boys of Boise scandal of the 1950s.
Doe v. Wasden thus demonstrates a historic struggle for the constitutionally protected right to substantive due process. While neglected in the Court’s decision for Lawrence v. Texas, and subsequently in the American Civil Liberty Union’s complaint before the U.S. District Court for the District of Idaho, anti-sodomy laws such as the Crime Against Nature statute endanger the equal protection of LGBTQ+ persons. This endangerment is surely less textually apparent than that of Kansas’s "Romeo and Juliet" law; its inequitable consequences, however, are still as vast. To tolerate a statute as targeted as Idaho Code § 18-6605 is to tolerate the judicial persecution of specific segments of society. The statute in question is, itself, a crime against our better nature.
[1] Doe v. Wasden, No.1:2020cv00452 (D. Idaho. September 23, 2020).
[2] Idaho Code § 18-6605.
[3] id.
[4] Lawrence v. Texas, 539 U.S. 558 (2003).
[5] Bowers v. Hardwick, 478 U.S. 186 (1986).
[6] Lawrence Hurley, "How RBG's Death could Shift the Supreme Court - and American Life - Rightward." Reuters, September 19, 2020, online at https://www.reuters.com/article/us-usa-court-ginsburg-direction-explaine/explainer-how-rbgs-death-could-shift-the-supreme-court-and-american-life-rightward-idUSKCN26A0RR (visited November 3, 2020).
[7] Texas Penal Code § 21.06.
[8] John Gerassi, The Boys Of Boise (New York: The Macmillan Co, 1966), online at http://ezproxy.cul.columbia.edu/login?url=https://www-proquest-com.ezproxy.cul.columbia.edu/books/boys-boise/docview/60585807/se-2?accountid=10226 (visited October 22, 2020).
[9] Seth Randal and Alan Virta, "Idaho’s Original Same-Sex Scandal." The New York Times, September 2, 2007, online at https://www.nytimes.com/2007/09/02/opinion/02randal.html (visited December 3, 2020).
[10] id.
[11] Thomas Reeves, "Boise Group's Plea: Fairness for all." Boston Globe, April 17, 1978, online at http://ezproxy.cul.columbia.edu/login?url=https://www-proquest-com.ezproxy.cul.columbia.edu/historical-newspapers/boise-groups-plea-fairness-all/docview/757409124/se-2?accountid=10226 (visited October 28, 2020).
[12] State of Kansas v. Limon, 280 Kan. 275 (Kan. 2005).
[13] id.
[14] id.
[15] Sara Nelson Glick, Martina Morris, Betsy Foxman, Sevgi O. Aral, Lisa E. Manhart, King K. Holmes, and Matthew R. Golden. "A Comparison of Sexual Behavior Patterns among Men Who have Sex with Men and Heterosexual Men and Women," JAIDS Journal of Acquired Immune Deficiency Syndromes 60, no. 1 (2012): 83, online at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3334840/ (visited December 3, 2020).
[16] Lawrence v. Texas, 539 U.S. 558 (2003).