In their crusade against excessive government, several Republican-led states have made it a priority to purge any laws they deem irrelevant or outdated from their books. But they’ve gone out of their way to spare laws that promote conservative social mores and discrimination against gays.
Gov. Sam Brownback created the Office of the Repealer to recommend the elimination of out-of-date, unreasonable and burdensome state laws that build up in any bureaucracy over time.
For gay men and lesbians, there seemed one particularly obvious candidate: Kansas Statute 21–3505.
That would be the “criminal sodomy” statute, which prohibits same-sex couples from engaging in oral or anal sex. The law was rendered unenforceable nearly a decade ago by a United States Supreme Court ruling, but it remains enshrined in the state’s legal code.
Since the Supreme Court’s ruling in Lawrence v. Texas struck down anti-sodomy laws as unconstitutional, Kansas’ statute has no force and effect. Yet Republicans are determined to keep it on the books as a purely symbolic gesture of their condemnation of gay couples. Of course, anti-sodomy laws also make oral and anal sex among consenting heterosexual couples a crime as well.
Kansas Republicans’ decision to keep the sodomy law in place is reminiscent of a move by Florida Republicans last year. During a culling of outdated and rarely enforced laws, GOP lawmakers spared one measure from the 1800s that makes “cohabitation” of unmarried couples a a second-degree misdemeanor, punishable by $500 or up to 60 days in jail.