When the United States Supreme Court ruled in 2003 in Lawrence vs. Texas on a 6-3 vote that the state had violated the liberty of the plaintiffs protected by substantive due process under the Fourteenth Amendment, it not only legalized consensual sex between two adults regardless of gender, but it overturned Bowers vs. Hardwick (1986) which ruled in favor of Georgia’s then anti-sodomy legislation. The process of destigmatizing members of the LGBT community in the eyes of the law had taken a quantum leap forward.
Except someone forgot to tell Alabama.
For the next thirteen years, almost to the day, members of Alabama’s LGBT community still risked being arrested, humiliated and dragged through the legal system despite the sheer impossibility of them being convicted. But a week ago today, the Alabama High Court struck down once and for all the state’s anti-sodomy law, according to a piece on ThinkProgress.com early this week.
“[T]he 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.
In all fairness to Alabama, part of the reason that the law remained on the books so long after is that no prosecutor worth his or her salt would ever try to bring charges against someone for something that has been deemed legal by the highest court in the land. But this is, after all, Alabama, where the Chief Justice of the Alabama Supreme Court is none other than rabidly homophobic Judge Roy Moore who once said, “To disfavor practicing homosexuals in custody matters is not invidious discrimination, nor is it legislating personal morality. On the contrary, disfavoring practicing homosexuals in custody matters promotes the general welfare of the people of our State in accordance with our law, which is the duty of its public servants…The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle…” It’s not certain any litigator looking to build a future in ‘the heart of Dixie,’ as Alabama is frequently referred to, would want to challenge one of the most influential people in the state. Because, since it was no longer a law in Alabama, there didn’t seem to be much of a reason to stoke Moore’s ire given his age and pariah status among legal circles.
But for now, members of the LGBT community can continue to do what they have always done without the fear of prosecution. And while it may seem a unnecessarily painful relic of an era long since gone, that it was left on the books and resurrected to charge someone reminds us all just how precarious those rights are.
