Imagine you are a young man alone in a park. Another man approaches you. He flirts with you. You flirt back, flattered that the handsome stranger likes you. He asks you to come back to his place. When you accept the invitation, he slaps handcuffs on your wrists and says you are under arrest.
Yes, it’s unlawful for police to arrest someone for being gay, but it still happens.
In its landmark ruling Lawrence v. Texas, the Supreme Court ruled that antisodomy laws —sometimes referred to as “crimes against nature” laws — are unconstitutional. But 12 states, including Louisiana, continue to keep such laws on their books.
You may believe antisodomy laws are not harmful because they can’t be enforced. But they are an important symbol of homophobia for those who oppose LGBT rights. What’s more, the laws create ambiguity for police officers, who may not be aware they are unconstitutional.
If a policeman looks it up, he will see that sodomy is a violation of Louisiana state law, according to Marjorie Esman, executive director of the American Civil Liberties Union of Louisiana.
“So if you [are a police officer] and haven’t been trained to know that this is no longer enforceable, you [may] think you have basis to arrest someone,” Esman says.
One example includes a string of about a dozen undercover arrests by East Baton Rouge Prrish police targeting gay men in a park. The arrests, which stretched over a 10 year period until 2013, demonstrate how problematic state laws can be when they contradict court rulings.
“Cops would sit in public parks in unmarked cars, propositioning [men] for sex, then when the men agreed, the police would arrest them for attempted crimes against nature,” says Matt Patterson, managing director of Equality Louisiana. “People were being arrested for agreeing to have sex in private at a future time.”
Despite the arrests, the charges were dropped because they were not enforceable.
In a separate 2015 incident, two men were arrested in Baton Rouge for having sex in a car parked in a public park after hours. The officer charged them with “crimes against nature.” The charge was later dropped and the men were charged only with trespassing.
In response to the incident, Baton Rouge Police Chief Carl Dabadie sent a memo out informing officers they can’t make arrests under the “crimes against nature” statute.
Patterson says someone who is arrested for sodomy in Louisiana is not likely to come forward because the state, like many others, does not have civil rights protections for LGBT people. That could make them vulnerable to housing and job discrimination.
“As long as it’s still on the books, I’m worried about the next person or the one after that or the next Baton Rouge police chief,” Patterson says, “or some sheriff somewhere else in the state that thinks they can get away with it because after all, they got away with it in Baton Rogue for a decade.”
Sodomy laws in some states are linked to rape and bestiality. That can make it difficult for legislators to remove them from the books.
Attempts have been made to repeal the Louisiana antisodomy statute to no avail. In 2014, Louisiana state Rep. Patricia Smith proposed such a bill, which failed to pass.
Republican Louisiana state Sen. Dan Claitor this month proposed a series of bills that would remove outdated laws from Louisiana’s books, but none addressed the antisodomy law or a state ban on same-sex marriage, according to The Advocate, a Baton Rouge-based newspaper.
Gene Mills, president of the Louisiana Family Forum, told the Baton Rouge Advocate he would oppose any bills related to changing sodomy laws or same-sex marriage.
“History has proven that ‘unenforceable’ doesn’t mean ‘useless,’” Mills, speaking on Lawrence v. Texas, told the newspaper. “They’re called opinions because that’s all they really are. The Supreme Court has reversed itself on more than 250 occasions.”
Opponents of the sodomy law argue that leaving it in place because the Supreme Court may reverse the Lawrence vs. Texas decision someday is nonsensical.
“To keep laws on the books that could confuse law enforcement — and the public — as to what their rights are, simply on a principle that has lost, is counterproductive at best and harmful at worst,” says Esman. “It’s an argument that is dangerous.”
JULIE COMPTON is a journalist in Brooklyn. Follow her @julieallmighty.