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Va. lawmakers repeal sodomy ban in unanimous vote

Adam Ebbin, Virginia, gay news, Washington Blade

‘The law was a terrible, symbolic insult,’ said gay State Sen. Adam Ebbin. ‘It will finally be off the books.’ (Photo courtesy of Adam Ebbin)

The Virginia House of Delegates on Thursday voted 100 to 0 to approve a bill that decriminalizes non-commercial sodomy between consenting adults in private, essentially repealing the state’s Crimes Against Nature statute that courts have declared unconstitutional.

The action follows a similar unanimous vote last month by the Virginia Senate to pass an identical bill. Democratic Gov. Terry McAuliffe was expected to sign the bill.

“The bottom line is that the General Assembly made great progress for treating sex as sex and applying the same criminal laws regardless of what kind of sex somebody is having,” said Claire Gastanaga, director of the ACLU of Virginia.

“In terms of making it clear that it’s not a criminal act for two adults to have oral or anal sex in the privacy of their own home or some other private space, it accomplishes that,” she said.

State Sen. Thomas Garrett (R-Lynchburg) introduced an earlier version of the bill that was revised last month by the Senate Courts of Justice Committee following input from the ACLU.

Garrett and others pushing the bill said it was needed because a ruling last year by the Fourth Circuit U.S. Court of Appeals in Richmond declaring the sodomy statute unconstitutional and unenforceable made it unclear whether prostitution involving oral or anal sex could be prosecuted.

Others, including former Virginia Attorney General Kenneth Cuccinelli, argued that the appeals court ruling, which was upheld by the U.S. Supreme Court, would prevent the prosecution of adults seeking to have consensual oral sex with minors between the age of 15 and 18.

Virginia’s existing criminal code addressing prostitution and non-forcible sex was linked to the sodomy statute, which for years defined sodomy as a criminal felony regardless of whether the sex was between consenting adults in private.

“The law was a terrible, symbolic insult,” said gay State Sen. Adam Ebbin (D-Alexandria). “It will finally be off the books, 11 years after it was ruled unconstitutional [by the U.S. Supreme Court],” he said. “Once the governor signs it, I am glad that all consenting adults will finally be treated as adults.”

Maryland is among more than a dozen states that have yet to repeal their sodomy statutes more than a decade after the Supreme Court declared state sodomy laws unconstitutional in its landmark decision of Lawrence v. Texas.

The openly gay and lesbian members of the Maryland General Assembly — including Del. Heather Mizeur (D-Montgomery County), who’s running for governor — have not responded to requests from the Blade about whether they plan to introduce legislation to repeal Maryland’s sodomy law.

“I’m always glad to see a situation where Virginia is more progressive than Maryland,” said Gastanaga of the ACLU. “It doesn’t happen often enough.”


La. sodomy law repeal bill fails

Louisiana House of Representatives, sodomy law, gay news, Washington Blade

Louisiana House of Representatives (Photo by Jeffrey Schwartz; courtesy Wikimedia Commons)

BATON ROUGE, La.–The Louisiana House of Representatives on April 15 killed a bill that would have repealed the state’s anti-sodomy law.

Lawmakers by a 66-27 vote margin rejected House Bill 12 that state Rep. Patricia Smith (D-Baton Rouge) introduced after reports emerged the East Baton Rouge Parish Sheriff’s Office arrested at least a dozen men under the statute over the last two years.

The U.S. Supreme Court in 2003 found Texas’ sodomy law unconstitutional in its landmark Lawrence v. Texas decision.

The Associated Press reported that state Rep. Valarie Hodges (R-Denham Springs) defended Louisiana’s sodomy law during the debate on HB 12.

“We’re not here to rubber-stamp the Supreme Court,” she said.


10 years later, another Supreme wait

The U.S. Supreme Court (Washington Blade file photo by Michael Key)

The U.S. Supreme Court (Washington Blade file photo by Michael Key)

Expectations are high as the wait continues for two decisions expected in June on marriage cases before the U.S. Supreme Court, just as they were 10 years ago when gay rights supporters awaited what amounted to landmark rulings in two other cases.

In 2003, two cases reshaped the landscape for gay rights: the U.S. Supreme Court decision in Lawrence v. Texas, which struck down state sodomy laws throughout the country, and the Massachusetts Supreme Court decision in Goodridge v. Department of Public Health, which for the first time led to the legalization of marriage equality in a U.S. jurisdiction.

The two cases currently before the court — Hollingsworth v. Perry, which aims to strike down California’s Proposition 8, and United States v. Windsor, which is challenging the Defense of Marriage Act — are different in many respects from the cases 10 years ago. Lawrence was related to sodomy laws and Goodridge was a state lawsuit that resulted in a change only in Massachusetts. Still, they’re similar in terms of their potential significance.

The two attorneys who made arguments before the courts in the decades-old lawsuits — in the Goodridge case, Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, and, in the Lawrence case, Paul Smith, a partner at Jenner & Block — acknowledged the magnitude of the cases both then and now, but said it’s hard to compare the significance of the older ones to the newer ones.

Smith said we won’t know the significance of the DOMA and Prop 8 cases until the Supreme Court rules on them, but touted the Lawrence decision striking down sodomy bans across the country as significant in any event.

“It provided the foundation for all the progress that has been made on marriage and other forms of discrimination over the past 10 years,” Smith said. “It did that by establishing that our relationships are just as important and valuable as different-sex relationships and by saying that the government can’t use morality as a justification for interfering with individual choices about who to love and how. With those principles in place it’s very hard for anyone to come up with a legitimate and persuasive justification for discrimination based on sexual orientation.”

Similarly, Bonauto said “it’s not really easy” to compare the significance of the Goodridge case to the Perry and Windsor lawsuits, recalling the different cultural climate 10 years ago in which the Massachusetts case was argued.

“In 2003, these waters were largely uncharted,” Bonauto said. “There were zero marriage states, a civil union system in Vermont, and 36 states with discriminatory statutes and four states with amendments. But then, as now, we were right; right on the constitutional principles and the utter absence of legal justifications for this discrimination.”

Those court rulings — in particular the Goodridge decision because it was the first successful case for full marriage equality in the United States — paved the way for 11 more states to approve same-sex marriage over the course of 10 years, including the legalization of marriage equality in Minnesota just this week.

Just as observers are parsing statements from justices now in an attempt to determine what the court may rule on Prop 8 and DOMA, followers of the court cases a decade ago were also trying to predict the future based on what was said during oral arguments.

In Lawrence, Smith said moderate justices at the time — Associate Justice Anthony Kennedy and then-Associate Justice Sandra Day O’Connor — were “uncharacteristically quiet,” making it difficult to predict how the court would rule.

“But we took hope from the fact that they didn’t say anything negative,” Smith added. “We were relatively optimistic that the court would strike down the sodomy laws once the court decided to take the case.”

For Goodridge, Bonauto said the wait was different from now in two regards: first because same-sex marriage wasn’t legalized anywhere in the country at the time, and second because there was no set timeline for when the Massachusetts Supreme Court had to make a decision.

“We thought and hoped we were right on the timing,” Bonauto said. “There were a lot of nerves and uncertainty while we waited. The fact that we didn’t know when the decision would come — no clue at all — added to the nerves and fueled the rumor factory. In the end, the decision turned out to be beautifully written and world-changing.”

In the present, many observers believe that the Supreme Court will issue a decision that will strike down DOMA on its merits — either based on equal protection or federalism grounds — although issues of standing were examined.

For Prop 8, much attention has been given to justices’ interest in the standing of Prop 8 proponents to defend the measure in court. A determination that they lack standing would leave in place a lower court ruling and likely invalidate the ban on same-sex marriage in California.

The standing issues before the Supreme Court, as Bonauto noted, also means the wait for Goodrige was different because the Massachusetts Supreme Court couldn’t rule on this basis.

“There were no outs,” Bonauto said. “They had to decide whether denying marriage to gay couples violates the Constitution of the Commonwealth or not. And I was asked very specifically in oral arguments about Vermont civil unions and a remedy that would provide those protections, and I said, ‘That was not what the plaintiffs were seeking; they were seeking access to marriage itself.’”

Notably, the oral arguments in Lawrence v. Texas took place on March 26, 2003, which is exactly 10 years to the day that oral arguments took place in the Prop 8 case on March 26, 2013. A ruling was issued in the Lawrence case on June 26, 2003 just as a ruling is expected in the Prop 8 and DOMA cases in June 2013.

In the Goodridge case, oral arguments took place before the Massachusetts Supreme Court on March 3, 2003, but a decision wasn’t rendered until Nov. 18, 2003.

Mary Bonauto, gay news, Washington Blade

Mary Bonauto (Washington Blade photo by Michael Key)

It remains to be seen whether the wording of rulings from the Supreme Court will have the same power as the language that justices handed down a decade ago. The 4-3 ruling in the Goodridge case affirmed that same-sex couples had the right to marry with never before seen language.

“The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry,” the decision states. “We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals.”

In the Lawrence case, the 6-3 opinion written by Associate Justice Anthony Kennedy determined that the framers intended language in the U.S. Constitution to be reinterpreted by later generations in accordance with their vision of liberty.

“They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Kennedy wrote “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Also unknown is how the public might react if the Supreme Court issues affirmative rulings for marriage equality in the Prop 8 and DOMA cases.

In 2003, the court ruling in Massachusetts — combined with then-San Francisco Mayor Gavin Newsom’s decision to issue marriage licenses to gay couples — sparked a national backlash that led in the next year to 11 states passing constitutional amendments banning same-sex marriage. Former President George W. Bush ran a successful re-election campaign in which he advocated for passage of a Federal Marriage Amendment.

But Bonauto was skeptical that the legalization of same-sex marriage led to the passage of state constitutional amendments and Bush’s re-election — saying the religious right wanted to enact the amendments anyway and analysis shows the marriage issue wasn’t as much a boon to Bush as it may seem on its face.

“By the time we had filed Goodridge, there were already 36 state statutes and four amendments,” Bonauto said. “So, for a lot of these states, they didn’t have anything else to do but to pass an amendment because they already had statutes barring marriage.  So I really view this as political opportunism both with elected officials and also the organized right-wing. It was trying to cut us off and change the facts on the ground, so that they could isolate this debate and isolate this issue in certain states.”

Given the growing acceptance of marriage equality — one widely noted recent poll shows it enjoys support from 58 percent of the American public, compared to 30 percent support in 2003 — the negative reaction to any pro-gay rulings will likely be more restrained.

In the event the Supreme Court in June renders similarly favorable decisions in support of rights for gay couples, Bonauto predicted some would speak out in opposition, but the reaction generally would be favorable.

“There are going to be people who are going to say things, and some of them have echo chambers and bully pulpits and their blogs,” Bonauto said. “I don’t think we should equate that to a backlash. I just think that is what public discourse is like in 2013. I really believe that the overwhelming majority of Americans are at a point where they accept and embrace the freedom to marry for same-sex couples.”


Baldwin joins ‘Night Out’ at Nationals Stadium

Tammy Baldwin, Night Out at the Washington Nationals LGBT event

Joined by Team D.C.’s Les Johnson (left), U.S. Senator Tammy Baldwin greets fans as she prepares to proclaim ‘Play Ball!’ at the 9th annual Night Out at the Washington Nationals Stadium LGBT event. (Washington Blade photo by Michael Key)

U.S. Sen. Tammy Baldwin (D-Wis.), the nation’s first openly gay senator, delivered the ceremonial announcement to “play ball” at the start of the 9th Annual LGBT Night Out at Washington Nationals Stadium Tuesday night.

Just under 4,000 people from the LGBT community bought tickets to attend the game, according to Brent Minor, executive director of Team D.C., the local LGBT sports group that organizes the ‘Night Out’ event.

The Nationals beat the Arizona Diamondbacks, 7-5.

Prior to the start of the game, Alan Gendreau, a gay Division I football player who has hopes of becoming the first out player in the National Football League, threw the ceremonial first pitch of the game.

Gautham Raghavan, the White House Associate Director of Public Engagement for LGBT issues, joined Nationals manager Davey Johnson in bringing the official lineup card of Nationals players to the umpires. Participating in this ceremonial task has been considered a tradition of Major League Baseball used to honor a public official or community leader.

For the eighth year in a row, the Gay Men’s Chorus of Washington sang the National Anthem at the ‘Night Out’ game, drawing enthusiastic applause from the crowd.

Among those attending the event was gay rights attorney Paul Smith, who argued the landmark U.S. Supreme Court case of Lawrence v. Texas in which the court overturned state sodomy laws exactly 10 years ago.

Smith joined many of the LGBT activists attending the ‘Night Out’ game in expressing optimism that the Supreme Court would issue favorable rulings the next day in two more landmark gay rights cases dealing with same-sex marriage.


Men arrested under Louisiana sodomy law

Sid Gautreaux, Baton Rouge, gay news, Washington Blade, sodomy

Sheriff Sid Gautreaux apologized on July 29 for the East Baton Rouge Parish Sheriff’s Office charging at least a dozen men under the state’s sodomy law over the last two years. (Photo by christmasinbr via Flickr)

BATON ROUGE, La.— A local newspaper on July 28 reported the East Baton Rouge Parish Sheriff’s Office has charged at least a dozen men under the state’s sodomy law over the last two years.

The Advocate reported authorities used the statute to entrap men at a local park who agreed to have consensual sex with an undercover officer at a nearby apartment. The newspaper said the July 18 arrest of a 65-year-old man is among at least a dozen such cases since 2011.

East Baton Rouge Parish Sheriff Sid Gautreaux on July 29 apologized.

“Our agency made mistakes,” he said in a statement, according to the Advocate. “We will learn from them and we will take measures to ensure it does not happen again.”

The U.S. Supreme Court in 2003 struck down the country’s remaining anti-sodomy laws in its landmark Lawrence v. Texas decision, but Louisiana is among the states that have yet to formally repeal them.

Gautreaux said he plans to meet with a Baton Rouge LGBT advocacy group to “further the dialogue between law enforcement and the LGBT community.” The Advocate on July 30 reported East Baton Rouge Parish Metro Councilman John Delgado has called for a local ordinance that would ban discrimination against the parish’s gay and lesbian residents.


Supreme Court rejects Va. request for stay on sodomy law

Gay News, Washington Blade, Gay Virginia, Ken Cuccinelli

Virginia Attorney General Ken Cuccinelli has argued the Supreme Court Lawrence decision does not apply to sexual relations between an adult and a minor. (Washington Blade file photo by Michael Key)

U.S. Chief Justice John Roberts on Friday denied a request by Virginia Attorney General Ken Cuccinelli that a lower court ruling overturning the state’s sodomy law be put on hold while the Supreme Court decides whether to hear Cuccinelli’s appeal.

Roberts, acting on behalf of the full court, did not issue an explanation for his denial of the request for a stay of a decision in March by the Fourth Circuit U.S. Court of Appeals in Richmond that declared Virginia’s Crimes Against Nature, or sodomy law, unconstitutional.

Cuccinelli asked the high court to put a stay on the Fourth Circuit ruling shortly after he filed a petition asking the Supreme Court to hear his appeal of the ruling. The high court was expected to decide later this year or early next year whether to hear the case. If it decides against hearing the case, the Fourth Circuit Appeals Court ruling remains in place.

That ruling overturned a felony conviction by a judge in the city of Colonial Heights, Va., of a 47-year-old man for soliciting oral sex from a 17-year-old woman. Although no sex took place, the defendant, William Scott MacDonald, had been charged with soliciting someone to commit a sexual act that his attorneys argued was no longer illegal.

A three-judge panel of the Fourth Circuit Appeals Court agreed with his attorneys, ruling 3-1 that the 2003 landmark U.S. Supreme Court decision Lawrence v. Texas invalidated the Virginia Crimes Against Nature law as “facially” unconstitutional, preventing it from being enforced, even in cases of consensual sodomy between an adult and a minor between the ages of 15 and 18. The judges noted that the age of sexual consent in Virginia is 15.

Cuccinelli has argued the Supreme Court Lawrence decision does not apply to sexual relations between an adult and a minor. He has stated in political ads in his campaign for governor that the sodomy law is needed to protect children from sexual predators. But attorneys and prosecutors familiar with Virginia’s criminal laws dispute that claim, saying existing state law allows for the prosecution of adults who engage in sex with minors.

The Fourth Circuit ruling said that while the Lawrence decision prohibited Virginia from applying the sodomy law in cases of consensual sex with someone between 15 and 18, it did not prevent the state legislature from enacting laws banning all sex between adults and people in that age range.



Supreme Court denies Cuccinelli appeal of Va. sodomy law ruling

Gay News, Washington Blade, Gay Virginia, Ken Cuccinelli

The high court declined to hear a case brought by Virginia Attorney General Ken Cuccinelli related to the commonwealth’s sodomy law. (Washington Blade file photo by Michael Key)

The U.S. Supreme Court on Monday denied a petition by Virginia Attorney General Ken Cuccinelli seeking to appeal a lower court ruling declaring the state’s Crimes Against Nature or sodomy law unconstitutional.

By refusing to hear the case, the high court allowed a decision in March striking down the law by the Fourth Circuit U.S. Court of Appeals in Richmond to stand, ending efforts by Cuccinelli and other officials to get the state’s ban on oral and anal sex between consenting adults reinstated.

“Under any circumstances this is definitely a victory and it’s a good one,” said Claire Gastanaga, executive director of the ACLU of Virginia. “It puts to rest this idea that somehow you can have a statute that’s found unconstitutional but you can still be prosecuted under it.”

Gastanaga was referring to the Supreme Court’s landmark 2003 decision of Lawrence v. Texas that overturned state sodomy laws. A three-judge panel of the Fourth Circuit Court of Appeals cited the Lawrence decision as the basis for its decision in March to overturn Virginia’s Crimes Against Nature statute, saying it could no longer be enforced under any circumstances.

Cuccinelli has contended that the Lawrence decision doesn’t apply to cases involving sex between adults and minors. As a candidate for governor, Cuccinelli launched a special campaign website earlier this year claiming removal of the sodomy law would prevent law enforcement officials from prosecuting “child predators.”

LGBT rights attorneys have disputed that claim, saying existing state laws enable police and prosecutors to arrest and prosecute anyone who sexually abuses a minor.

The Fourth Circuit appeals court decision struck down a felony conviction by a judge in the city of Colonial Heights, Va., of a 47-year-old man for soliciting oral sex from a 17-year-old woman. Although no sex took place, the defendant, William Scott MacDonald, had been charged with soliciting someone to commit a sexual act that his attorneys argued was no longer illegal under the Lawrence decision.

In its 2-1 ruling, the appeals court panel declared that the Lawrence decision invalidated the Virginia Crimes Against Nature law as “facially” unconstitutional, preventing it from being enforced, even in cases of consensual sodomy between an adult and a minor if the minor is between the ages of 15 and 18. The judges noted that the age of sexual consent in Virginia is 15.

Cuccinelli’s office issued a statement on Monday saying the elimination of the sodomy law “puts tools prosecutors need to protect children in jeopardy.”

According to the statement, Cuccinelli’s efforts to keep the law on the books “was never about sexual orientation or private acts between consenting adults” but instead was about enabling law enforcement officials to “prosecute child predators.”

Attorneys familiar with the case — including prosecutors in Arlington and Alexandria — have said existing state laws give law enforcement officials the ability to prosecute all cases of forcible or coerced sex between an adult and a minor as a felony. They say that heterosexual intercourse between a minor within the age range of 15 through 17 and an adult can still be prosecuted as a misdemeanor. But with the elimination of the state sodomy law, consenting oral or anal sex among minors — gay or straight — between age 15 and 17 and an adult is fully legal and can’t be prosecuted until or unless the legislature changes the law.

Gastanaga and others familiar with Cuccinelli’s concerns have called on the Virginia General Assembly to revise the existing laws addressing the age of consent or sex with minors in a way that doesn’t violate the Constitution as spelled out in the Lawrence decision.

“That means you’ve got to do the hard work of getting together with the Commonwealth’s Attorneys and public defenders and other criminal defense lawyers and legislators and people like us and try to work out something that does address what you want to address, which is sexual activity that is not constitutionally protected,” Gastanaga said.

James Parrish, executive director of the statewide LGBT group Equality Virginia, said his organization would not oppose legislation that reforms existing laws to address potential problems resulting from the striking down of the sodomy law.

“This is something the Supreme Court decided now more than 10 years ago,” Parrish said. “We understand that the attorney general and others have some concerns of how the sodomy law was intertwined with other laws. They have had 10 years to make those laws more clear and we would hope they would work with the General Assembly to address these concerns” in a way that doesn’t violate the Lawrence decision’s protections pertaining to consenting adults, he said.

Although Cuccinelli criticized his Democratic opponent, businessman Terry McAuliffe, for expressing support for overturning the Virginia sodomy law, McAuliffe was leading Cuccinelli by a 42 to 37 percent margin in one of the most recent public opinion polls conducted by Virginia’s Hampton University.

Josh Schwerin, McAuliffe’s press secretary, said Cuccinelli demonstrated “an extreme agenda and uncompromising approach” by refusing in the past to support legislation to update Virginia’s laws to conform to the Supreme Court ruling on sodomy.

“Everyone supports strong laws to protect children and, like most Virginians, Terry believes our law should be updated to both conform with court rulings and allow prosecution of predators,” Schwerin said. “As he admitted as recently as 2009, Ken Cuccinelli is one of the only elected officials in America who believes that being gay should result in criminal prosecution and jail time,” he said.

Under the Supreme Court’s rules, at least four of the court’s nine justices must vote to hear a case in order for the court to consider a case on its merits. The court never discloses how individual justices vote or what the vote count was when it decides whether or not to take a case.

However, in August Supreme Court Chief Justice John Roberts issued a ruling denying a separate petition by Cuccinelli asking the court to put a stay on the Fourth Circuit Court of Appeals ruling striking down the Virginia sodomy law until the Supreme Court decided whether or not to take the case. Roberts did not issue an explanation for denying Cuccinelli’s request for a stay.


Alan Simpson speaks out on gay rights

Alan Simpson, gay news, Washington Blade

Former U.S. Sen. Alan K. Simpson says he’s ‘pissed off everyone in America.’ (Washington Blade file photo)

Former U.S. Sen. Alan K. Simpson (R-Wyo.) said he is proud to have helped arrange for former President Gerald Ford, during Ford’s retirement years, to become the first U.S. president to become a member of a gay rights organization.

In an exclusive interview with the Washington Blade last week, Simpson talked about how he sees no contradiction in his longstanding role as a conservative Republican and his support for equal rights for LGBT people, including equal marriage rights for gays and lesbians.

“All I know is we have made great strides for gays and lesbians and transvestites,” he said when asked if he thought Congress would soon approve the Employment Non-Discrimination Act, or ENDA, a bill calling for banning job discrimination against LGBT people.

Saying he isn’t always certain about the proper terminology to use in discussing LGBT issues, Simpson said he is certain about his longstanding commitment to fairness and equality, even if he is at odds with many of his Republican colleagues.

“Let’s just keep making these strides and it will happen,” he said referring to ENDA, which is expected to come up for a vote in the Senate before Thanksgiving.

“It will happen because other people know these people and they love them,” he said. “And I’m very pleased. Anyone who is on the side of justice and freedom and caring about fellow human beings is pleased about what’s going on.”

Simpson said his own views on gay rights were shaped by his and his wife of 59 years, Ann Schroll Simpson’s, longstanding belief in fairness and equality for everyone and by gay people they came to know over the years.

“I had a gay cousin who was a war hero in World War II — a wonderful man,” he said.

Simpson said he’s also proud to have been named about 10 years ago by the national gay magazine The Advocate as “one of the ten coolest straight guys in America.”

Simpson spoke to the Blade on Oct. 23 just before delivering opening remarks at a performance at D.C.’s All Souls Unitarian Church of a gay-themed mock trial of deceased former U.S. Sens. Joe McCarthy (R-Wisc.), Styles Bridges (R-N.H.), and Herman Welker (R-Idaho).

The script for the mock trial, which is performed as a play, was written by Wyoming writer, minister and former politician Rodger McDaniel, a friend of Simpson’s, who based the script on his recently published book, “Dying for Joe McCarthy’s Sins: The Suicide of Wyoming Senator Lester Hunt.”

In his book, McDaniel reports, based on extensive interviews and historical documents, that Hunt, a Democrat, committed suicide in 1954 after McCarthy and the other two senators conspired to blackmail him by threatening to publicize the arrest of Hunt in Washington one year earlier for allegedly soliciting an undercover vice police officer for gay sex.

McDaniel’s book and the mock trial describe in detail how the three senators, all Republicans, wanted to force Hunt to resign from the Senate, which would have tipped the closely divided body from Democratic to Republican control. A GOP-controlled Senate at the time would have strengthened McCarthy’s campaign to purge large numbers of gays and others he accused of being communist sympathizers from their government jobs.

The alleged scheme unfolded in the midst of the nation’s “red scare” triggered by McCarthy’s allegations that communists and communist sympathizers were working in high level U.S. government jobs and in the U.S. military.

Simpson told the Blade he was appalled over the facts that McDaniel brought to light in his book, prompting him to agree to write the forward for the book.

Simpson’s discussion with Gerald Ford over gay rights took place shortly after Simpson accepted an invitation by gay Republican activist Charles Francis to become chairperson of the Advisory Board of the Republican Unity Coalition, a gay-straight alliance that Francis and two other gay Republican advocates founded in 2001.

“I picked up the phone,” Simpson said in describing his conversation with Ford. “Charles asked me to call him. I said OK. And I called and I said, ‘Jerry this is Al Simpson.’ And he said, ‘I’m 80,’ or whatever it was. But he said, ‘I’ll do it.’”

According to Simpson, Ford told him among the reasons he would be happy to join the RUC’s Advisory Board was the false rumor he and his family endured in the 1970s that he ignored a gay man who saved his life in an assassination attempt in San Francisco. As Ford left a hotel where he spoke, the gay man, who was standing in a crowd of people watching Ford, saw a women point a pistol at Ford and deflected her arm, causing her to fire at the ground.

“He said, ‘That’s the biggest damn lie,’” Simpson quoted Ford as saying in referring to the rumors that he never thanked the man who deflected the gun. “So Jerry said just for that reason, sign me up. And he went right on the letterhead, and boy that helped,” Simpson said.

Francis said Simpson has continued his outspoken support for LGBT rights since becoming involved in the RNC. He noted that in 2003, Simpson signed on to an amicus brief that RUC filed with the U.S. Supreme Court in support of the case that led to the overturning of state sodomy laws known as Lawrence v. Texas.

Asked whether he has received flak from some fellow Republicans and others over his support for LGBT rights and same-sex marriage, Simpson said, “Everything I’ve done has had flak. I’m 82 now and I’ve effectively pissed off everyone in America. So yeah, but I just say we’re all God’s children. We’re all human beings.”

Simpson’s longstanding reputation for speaking bluntly emerged when he told the Blade how he reacted to attacks from the Rev. Fred Phelps, the anti-gay minister who heads Westboro Baptist Church of Topeka, Kan. For more than 10 years, Phelps has led protests of gay events, including funerals of gay people, while carrying signs saying “God hates fags.”

“I remember writing a letter to Rev. Phelps,” Simpson told the Blade. “And I said, ‘Dear Rev. Phelps: For all your good work for God and Christianity I want you to know that some dizzy son-of-a-bitch is writing me letters, homophobic letters, and signing your name,’” Simpson said, grinning. “’And I know that you wouldn’t want this to continue so I’m hoping you will help me track this person down and find out who it is — yours in God.’”

Added Simpson, “That must have really pissed him off. But I couldn’t imagine doing anything more delightful for him.”

Simpson continued: “So I have been called out by the goofys and the nuts. And they’re not all religious. So don’t blame it on religion. Don’t use that. That’s not fair. There are plenty of non-religious people that are homophobes.”

As a graduate of the University of Wyoming in Laramie, Simpson said he, like nearly all Laramie and Wyoming residents, was outraged over the 1998 murder of Matthew Shepard, then a gay student enrolled at the university.

“The two crazy sons of bitches that killed him are crazy sons of bitches,” he said. “They weren’t part of the university. They weren’t part of the community. They were a couple of sadistic bastards.”

Simpson praised “The Laramie Project,” a play about the Shepard murder and the response to it by Laramie residents.

“I see it’s playing at Ford’s Theater right now,” he said. “It’s a great portrayal.”

But he added, “There’s only one weakness in it. It didn’t show the power of the president of the university and how restive he was to the horror of the crime. It didn’t show the force of how he said this is appalling, it’s grotesque, and it didn’t involve the university students.”


Sodomy laws remain on books in 17 states, including Md. and Va.

Paul Smith, gay news, Washington Blade

Some gay rights attorneys, including Paul Smith, who successfully argued the Lawrence case before the Supreme Court, have expressed concern that prosecutors and lower court judges are misinterpreting language in the Lawrence decision. (Washington Blade photo by Michael Key)

Laws that make it a crime for consenting adults to engage in sodomy remain on the books in 17 states and continue to be enforced in several of those states 10 years after the U.S. Supreme Court declared such laws unconstitutional.

Last week, the Montana Legislature gave final approval of a bill to repeal that state’s sodomy law. (A spokesperson for the state’s Democratic governor, Steve Bullock, said Bullock was scheduled to sign the bill on Thursday, which would lower the number of states with sodomy laws from 18 to 17.)

According to LGBT activists and gay rights attorneys, most of the cases in which police and prosecutors enforce sodomy or “crime against nature” statutes involve marginalized groups such as transgender sex workers or gay men arrested by undercover police officers for engaging in or soliciting sex in parks or other public places.

But the author of a comprehensive report on the continued enforcement of state sodomy laws released in 2011 by the national LGBT advocacy group Equality Matters said many of the cases involve arrests of men who merely seek to invite another willing male partner to their home for a sexual encounter where prostitution is not involved.

Equality Matters researcher Carlos Maza, author of the report “State Sodomy Laws Continue to Target LGBT Americans,” told the Blade that although sodomy laws apply to straights as well as LGBT people in all but four of the states that have them, LGBT people are targeted far more often than straights.

“LGBT people in Michigan continue to be charged with crimes for public speech, in which they let another person know they are interested in private, unpaid sex with another adult,” the report quotes Michigan gay rights attorney Rudy Serra as saying in the Michigan publication Pride Source.

“Bag-A-Fag (undercover decoy cop) operations, where police officers pretend to be gay men cruising for unpaid, consensual sex continue in Michigan,” the report quotes Serra as saying. “LGBT people are still at risk of spending 15 years in state prison for acts that are perfectly legal in most other states.”

Serra told the Blade in an interview that someone convicted under Michigan’s sodomy law, called the Abominable and Detestable Crime Against Nature statute, and a separate “Gross Indecency” law, also must register with the state as sex offenders.

He said despite the fact that the Lawrence v. Texas decision renders these laws unconstitutional, the Michigan State Bar, which every lawyer is required to join, has retained written instructions about how juries should deliberate over cases in which a person is charged and brought to trial under the sodomy and Gross Indecency laws.

Gary Buseck, legal director of the New England-based litigation group Gay & Lesbian Advocates & Defenders, said he is not aware of any cases in which the Massachusetts sodomy law has been enforced against people for private, consensual, non-commercial sex since the 2003 Lawrence decision.

But he said the Massachusetts law continues to be used, although rarely, by police against gays in cases of “public” sex.

“We have always understood that in straight ‘lovers’ lanes,’ the police traditionally just shoo couples away and that’s that,” he told the Blade. “With gay men there has traditionally been the ebb and flow of sting efforts or entrapment efforts or enhanced enforcement efforts at what become identified as gay cruising areas.”

Buseck added, “Occasionally, men will still be charged with a felony sodomy [in Massachusetts]. But we have not been aware in recent years of any district attorneys who will go forward with such a case.”

In at least one case in North Carolina in 2008, police arrested two gay men under that state’s sodomy statute for allegedly engaging in consenting sex in the privacy of one of their homes. The case outraged gay activists in the state, who noted it was similar to the Lawrence v. Texas case in which the Supreme Court supposedly overturned state sodomy laws.

A prosecutor eventually dropped the charges against the men after determining that the arrest by officers of the Raleigh Police Department violated the Lawrence v. Texas ruling.

The Raleigh News and Observer and other news media outlets reported that police got involved in the case after the men became involved in an incident of domestic violence and one of them called police.

In the course of a police investigation, one of the men said the other sexually assaulted him, according to media accounts. But a police official told media outlets the incident appeared to be “a case of a consensual act that may have gotten out of hand.”  Instead of charging one of the men with sexual assault, police charged both men with violating the sodomy statute.

The News and Observer reported at the time that the man who claimed he was sexually assaulted said he was grateful that the sodomy charge was dropped but said he had been humiliated over being accused of a crime listed as a Class 1 felony — sodomy — punishable by up to two years in prison.

“The reality is the process of being arrested for these laws is extremely damaging to the people who get caught up in the system,” Maza told the Blade. “And the only real solution is to have those laws taken off the books.”

Added Maza, “Unfortunately a lot of people don’t have the motivation to get that done when things like marriage and employment discrimination are being discussed in state legislatures.”

Maza and gay rights attorneys familiar with Maryland said they were not aware of Maryland’s sodomy law being enforced since the late 1990s. [See separate Blade story on Maryland’s sodomy law.]

The Virginia sodomy law, which also remains on the books, has been enforced against gays and straights charged with offenses related to public sex or sex with minors, attorneys familiar with the Virginia Crimes Against Nature law have said. A federal appeals court ruled last month that the Virginia statute was “facially” or completely unconstitutional and could no longer be enforced under any circumstances.

The Equality Matters report notes, however, that police and prosecutors in some states, including Michigan and Texas, have continued to enforce sodomy laws despite the fact that state courts have joined the U.S. Supreme Court in invalidating those laws.

“Even in states where these statutes are never enforced, anti-LGBT animosity is fanned by government recognition that LGBT people are viewed as criminals in the eyes of the law,” Maza states in the Equality Matters report. “This animosity helps create the conditions for anti-LGBT hate crimes as well as disproportionate rates of suicide among non-heterosexual youth,” the report says.

Lawrence loophole?

Some gay rights attorneys, including Washington, D.C. attorney Paul Smith, who successfully argued the Lawrence case before the Supreme Court, have expressed concern that prosecutors and lower court judges are misinterpreting language in the Lawrence decision.

According to these attorneys, certain prosecutors and judges are claiming a passage in the Lawrence decision penned by Justice Anthony Kennedy, who wrote the majority opinion in the case, provides a broad loophole that gives them authority to continue enforcing their state sodomy laws in cases involving public sex, sex with minors, or prostitution-related sex.

The passage in question states, “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”

Virginia Attorney General Ken Cuccinelli, who defended Virginia’s sodomy law against a court challenge this year, has cited the so-called loophole in his arguments urging the Fourth Circuit U.S. Court of Appeals in Richmond to uphold the statute. The court instead declared the law unconstitutional based on the Lawrence decision and refused Cuccinelli’s request that the full 15-judge court reconsider the decision handed down by a three-judge panel.

Cuccinelli has yet to disclose whether he plans to ask the U.S. Supreme Court to consider the case as a final appeal.

Gay rights attorneys say that Kennedy’s passage appearing to limit the scope of the Lawrence decision to non-commercial, consenting sex among adults in private appears reasonable on its face. Smith, for example, told the Blade he and the other attorneys who helped him prepare the Lawrence case before the high court did not call for a ruling that went beyond invalidating state sodomy laws for private, consenting, non-commercial sex between adults.

But gay rights attorneys say they do not think Justice Kennedy and the justices who ruled with him intended that gays be singled out for harsher treatment than straights for identical infractions through the enforcement of state sodomy laws.

In the Equality Matters report, Maza points out that prosecutors in some states, especially Louisiana, have used sodomy laws to push for harsher penalties against LGBT suspects using sodomy laws than they would for heterosexual suspects accused of engaging in the exact same behavior, such as prostitution or public sex.

In Louisiana, the report says, people accused of engaging in prostitution could be charged either under the state’s anti-prostitution law or under the solicitation provision of the Louisiana “Crime Against Nature” law, which criminalizes oral and anal sex.

The Crime Against Nature statute carries a longer prison term than the prostitution law, the report says, and unlike the prostitution statute, people convicted under the Crime Against Nature law must register as sex offenders, even if the sex is between consenting adults.

Activists say some of Louisiana’s transgender women and young gay men who have been rejected by their families for being gay or transgender engage in prostitution as a means of survival. Activists say members of these two groups have been among those most frequently charged under the Crime Against Nature law in Louisiana.

The Center for Constitutional Rights, which has provided legal assistance to people charged under Louisiana’s crime against nature law, has criticized law enforcement officials for seeking to enforce the law up until last year, when a state court ruled it could no longer be enforced based on the Lawrence decision.

“[T]he only reason our clients are registered sex offenders is that they were convicted under the provisions of a 200-year-old statute that condemns non-procreative sex acts and sex acts traditionally associated with homosexuality, solely on grounds of moral disapproval,” the group said in a statement.

The Equality Matters report says one of the most dramatic examples of how a state sodomy law can inflict a harsher penalty on LGBT people surfaced in Kansas in 2004. In a case known as State v. Limon, a Kansas state appellate court cited the so-called Lawrence loophole or “exemption” for minors in a ruling upholding a trial court conviction of an 18-year-old male charged with engaging in consensual oral sex with a 14-year-old boy. Both had been living in the same residential school facility for mentally challenged youth.

If the 14-year-old had been a girl rather than a boy, the 18-year-old would have been charged under a Kansas “Romeo & Juliet” law. That law calls for a young adult charged with having sex with a minor whose age is within four years of the young adult to receive a far more lenient sentence under the state’s statutory rape law if the sex is consensual. The 18-year-old, who was charged and convicted under the Kansas criminal sodomy law, was sentenced to 17 years in prison.

His conviction was later overturned by the U.S. Supreme Court on grounds that the Kansas sodomy law was unconstitutional based on the Lawrence decision.

“The reality is that, in many states, enforcement occurs sporadically, typically at the discretion of particular police officers,” said Maza in discussing the rationale for enforcing sodomy laws.

“Even though the laws are clearly unconstitutional, their existence in the legal code gives officers the cover they need to arrest and prosecute gay people,” he said. “Sometimes officers simply choose to ignore Lawrence altogether in an attempt to enforce state sodomy laws as if the decision never occurred.”

Although the majority of sodomy cases are eventually dismissed, Maza said, the fact that people are still charged under the laws, and few people until recently were aware of this taking place, demonstrates that LGBT organizations should take a far more aggressive approach in addressing the issue.

“Only fully repealing these measures ensures that LGBT Americans will be protected from arbitrary and discriminatory legal treatment,” Maza said.

Following is a list of the states that had sodomy laws on the books as of early this week.

Montana’s governor was expected to sign a bill this week to repeal that state’s sodomy law, making Montana the first state to repeal its sodomy statute through legislation in many years.

An asterisk indicates the state sodomy law only applies to gay sex.

  • Alabama
  • Florida
  • Georgia
  • Idaho
  • Kansas*
  • Louisiana
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Mississippi
  • Montana*
  • North Carolina
  • Oklahoma*
  • South Carolina
  • Texas*
  • Utah
  • Virginia

Court strikes down Va. sodomy law

Supreme Court, gay news, Washington Blade

The U.S. Supreme Court struck down sodomy laws as unconstitutional back in 2003, but such laws remain on the books in some states. (Washington Blade file photo by Michael Key)

A federal appeals court handed down a 2-1 decision on Tuesday striking down a section of Virginia’s “Crimes Against Nature” statute that outlaws sodomy between consenting adults, gay or straight.

The 4th U.S. Circuit Court of Appeals issued its ruling in a case in which a 37-year-old married man was charged in 2005 with soliciting another woman, who was 17, to engage in oral sex.

William Scott MacDonald, who lived at the time in the City of Colonial Heights, was convicted of a misdemeanor offense of contributing to the delinquency of a minor and of a felony offense of solicitation for sodomy.

The 4th Circuit federal appeals panel overturned his conviction by a trial judge on the solicitation charge and reversed two lower court rulings that upheld the trial court decision – all on grounds that the 2003 U.S. Supreme Court ruling of Lawrence v. Texas rendered the Virginia anti-sodomy law unconstitutional.

“It is shameful that Virginia continued to prosecute individuals under the sodomy statute for ten years after the Supreme Court held that such laws are unconstitutional,” said Rebecca Glenberg in a statement on behalf of the ACLU of Virginia. The ACLU filed a friend-of-the-court brief supporting MacDonald’s appeal.

“This ruling brings an end to such prosecutions,” she said

The New York-based gay litigation group Lambda Legal Defense and Education Fund also submitted a friend-of-the-court, or amicus, brief on MacDonald’s behalf, according to a notation on the federal appeals court’s 30-page opinion.

A spokesperson for Lambda couldn’t immediately be reached for comment.

“In Lawrence, the Supreme Court plainly held that statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty assured by the Due Process Clause of the Fourteenth Amendment,” said the majority opinion in Tuesday’s appeals court ruling.

Judge Robert King, who wrote the majority opinion, and Judge Diana Gribbon Motz, who joined King in the ruling, rejected arguments by the Virginia Attorney General’s office and rulings by two lower courts that the Lawrence decision didn’t apply to cases involving minors.

King noted in his opinion that current Virginia law, under the parameters of the Lawrence decision, can only prohibit an adult from soliciting sodomy from someone under the age of 15, which is the legal age of consent in the state.

“Thus, although the Virginia General Assembly might be entitled to enact a statute specifically outlawing sodomy between an adult and an older minor, it has not seen fit to do so,” he wrote in his opinion.

Brian Gottstein, a spokesperson for the Virginia Attorney General’s office, told the Richmond Times Dispatch the office “was reviewing the decision and will consider our options.”

The Times Dispatch reported that MacDonald and his wife have since moved to North Carolina. The paper reported that the wife, Carolynn MacDonald, said her husband is a combat veteran suffering from post-traumatic stress disorder.

“He’s enjoying today, but having a difficult time with it,” the Times Dispatch quoted her as saying.

In its summary of the background of the case, the 4th Circuit Appeals Court opinion states that it was MacDonald who triggered an investigation that led to his arrest. It cites trial court records as showing the 17-year-old girl turned down MacDonald’s request that she perform oral sex on him and appeared to let the matter drop.

But according to court records, MacDonald later called the police to report that the 17-year-old solicited him for sex. In an official police report, he told a detective that the 17-year-old “forcibly removed his penis from his pants and performed oral sex against his will.”

After interviewing the 17-year-old, the detective determined that her strong denials that she sought to have sex with MacDonald had far more credibility than MacDonald’s allegations. The detective obtained warrants for MacDonald’s arrest, starting the chain of events that led to Tuesday’s court ruling overturning the state sodomy law.