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It Took Until Last Friday For An Alabama Court To Strike Down That State’s Ban On Gay Sex

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"It Took Until Last Friday For An Alabama Court To Strike Down That State’s Ban On Gay Sex"

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Same Sex Advocates Protest

CREDIT: AP Photo/Adam Lau

A law is still on the books in the state of Alabama which provides that a person is guilty of “sexual misconduct” if they engage in “[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another” — meaning that oral and anal sex of any kind is a crime under Alabama state law unless it is enjoyed with one’s spouse. Because Alabama is also a marriage discrimination state, this law has obvious implications for gay people in that state. Indeed, the official commentary to the law explains that it was enacted to “make all homosexual conduct criminal.”

“Consent,” under this Alabama sex ban, “is no defense to a prosecution.”

On Friday, however, an Alabama appeals court handed down the state’s first decision declaring this law unconstitutional. This isn’t a particularly surprising decision. The Supreme Court held in its landmark 2003 opinion in Lawrence v. Texas that the Constitution forbids laws prohibiting consensual, private sexual activity between adults. If an Alabama court allowed the state’s sex ban to stand, it would have done so in direct defiance of the Constitution and the Supreme Court of the United States.

In fairness, the fact that it took nearly eleven years from the day Lawrence was decided for an Alabama court to strike down this law may be attributable to good behavior by the state’s prosecutors (although that still does not explain why the courts did not strike the law down in the decades preceding Lawrence). Shortly after Lawrence, the state’s attorney general conceded that the law is unconstitutional “to the extent that it applies to private, legitimately consensual anal and oral sex between unmarried persons.” So it is possible that the law has not been tested because prosecutors refrained from bringing unconstitutional prosecutions under this statute after Lawrence.

Indeed, the defendant in the case that ultimately led the state appeals court to strike this law down was initially charged with “sodomy in the first degree” — a much more serious crime akin to rape. The jury, however, did not convict this defendant of a crime involving non-consensual sex. They convicted him of the lesser crime prohibiting consensual anal intercourse. This, the state appeals court held, is not allowed.

Despite Lawrence, there is some risk that the state supreme court could try to reinstate the ban on oral and anal sex. The state’s chief justice, Roy Moore, is vocally anti-gay and he has a well-known history of violating the Constitution. One of his colleagues, Justice Tom Parker, compared a judge who struck down the military’s anti-gay Don’t Ask/Don’t Tell policy to al-Qaeda. Parker also has a history of urging defiance of Supreme Court rulings.

The bigger risk, however, will come if the United States Supreme Court adds just one more conservative justice. Although six justices agreed in Lawrence that the state of Texas’ ban on gay sex was unconstitutional, one of those justices, Justice Sandra Day O’Connor, has since left the Court. Moreover, four of the Court’s current members, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, joined anti-gay opinions in the 2013 decision United States v. Windsor. If another conservative joins the Court, there may be enough votes to overrule Lawrence. That would mean that sex bans like the one in Alabama would come roaring back to life.

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