A surprising number of states still have anti-sodomy laws on the books, nearly a decade after the Supreme Court ruled such laws unconstitutional.
Up until March, Virginia was the 14th state to maintain the federally unconstitutional legislation. The state’s “Crimes Against Nature” statute, which outlaws sodomy between consenting adults, was struck down last month after judges found it contradicted the 2003 Supreme Court ruling in Lawrence v. Texas.
Now the state of Virginia, led by Attorney General Kenneth Cuccinelli, has appealed to the 4th Circuit U.S. Court of Appeals in Richmond, asking the court to allow the statute to stand so he can prosecute a 47-year-old man who solicited a 17-year-old for oral sex.
As various outlets have noted, Cuccinelli’s appeal raises a broader question: Why do so many states continue to keep laws that contradict the federal precedent?
As Mother Jones reports, it takes work to keep the laws. While Virginia has argued that it needs such a law to prevent sex between adults and minors, in the decade since Lawrence v. Texas, state legislatures have prevented efforts to repeal anti-sodomy laws in Montana, Kansas, Utah, Louisiana, North Carolina and Texas.
“Conservatives in those states know they can’t enforce the laws, but by keeping them in the code, they can send a message that homosexuality is officially condemned by the government,” the news outlet wrote in 2011.
Writing for The Week, Dana Liebelson points out that anti-sodomy laws are far from meaningless relics. In 2008, North Carolina used its statute to arrest two men who had engaged in consensual sex. (The charges were later dropped.) And in 2011, police in El Paso, Texas, kicked a pair of gay men out of a Mexican restaurant for “homosexual conduct.” No citation was ever issued.
“If you pass a law that says no one can drive a car and that law gets struck down, you can’t later use it to prosecute someone who is committing a bank robbery in a getaway car,” Gregory Nevins, an attorney for Lambda Legal, told The Week. “The cynical explanation of why these laws are still around is that it keeps members of the LGBT community in their place.”
However, while Cuccinelli has argued that protecting minors is his goal, the politician has previously stated that homosexual sex is “wrong” and suggested it be banned, ThinkProgress notes.
“My view is that homosexual acts, not homosexuality, but homosexual acts are wrong,” Cuccinelli told The Virginian-Pilot in 2009. “They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that.”