Lesbian and gay activists are challenging a 1916 Maryland law they say criminalizes their sex lives. Their lawsuit is part of a national campaign to wipe off the books similar state laws across the country.
The activists and civil libertarians have targeted Maryland and other states -- such as Arkansas -- which they say have laws that single out homosexuals.
Maryland's law makes it illegal for people of the same gender to engage in oral sex. They can face up to 10 years in prison under the law. The law makes anal sex illegal for all. Though the plaintiffs concede the criminal laws are rarely enforced against people engaging in consensual sex behind closed doors, they say the anti-sodomy law has other ramifications. The law is used as ammunition in child custody cases and as the basis for job discrimination, they charge.
"Maryland and Arkansas are being very closely watched around the country by the gay community," said Arthur Leonard, a professor at New York Law School and author of "Sexuality and The Law." "I think [such suits] are going to continue. It's just a question of resources."
Baltimore Circuit Judge Richard T. Rombro will decide whether to allow the suit to go forward. A decision is expected soon.
About 20 states have sodomy statutes. Michael Adams, an attorney with the American Civil Liberties Union's National Lesbian and Gay Rights Project who is working on the Maryland case, said his organization and others have been focusing on challenging the statutes, particularly those in six states -- including Maryland -- that distinguish between sexual orientation. Heterosexuals, in Maryland for example, may engage in oral sex.
Suits attacking the laws have been filed in Arkansas, Kansas, Puerto Rico and Louisiana.
In two court cases, a man and a woman in Texas were denied jobs on the Dallas police force because they were gay and sodomy laws made them criminals. A 1993 ruling from the Texas Court of Appeals forbade the Dallas police force from using the sodomy law to deny employment.
The plaintiffs say the law violates their right to privacy and equal protection. For Baltimore lawyer Catherine M. Brennan, the fact that the law is on the books is wrong.
The law "is repugnant," said Brennan, who is a lesbian. "I would like for the law of Maryland not to have built into it an irrational bias" against homosexuals.
The Maryland suit, filed in February, names as plaintiffs Brennan; Bruce Williams, a city councilman in Takoma Park; his partner, Geoffrey Burkhart, an anthropology professor at American University; Lawrence S. Jacobs, a corporate attorney and civic activist in Rockville; "John Doe," a federal employee who was arrested in Anne Arundel County; and Paula J. Peters, an Annapolis taxpayer who objects to government money spent on enforcing anti-sodomy policies.
The defendants are Gov. Parris N. Glendening; state Attorney General J. Joseph Curran Jr.; Baltimore police Commissioner Thomas C. Frazier; Anne Arundel County Executive John G. Gary; and Anne Arundel police Chief Larry W. Tolliver.
Attorneys for the defendants maintain that the lawsuit should be dismissed because the law is not enforced against homosexuals engaged in private, consensual sex. They have filed affidavits from Frazier and an Anne Arundel County police supervisor attesting that no residents in those jurisdictions have been arrested for such crimes.
"It's not a concern of law-enforcement authorities about what goes on behind closed doors," said Assistant Attorney General Andrew H. Baida, who is defending the state. "It's a nonissue."
The state is fighting to keep the law, Baida said, because it is used in criminal cases where the act is not consensual, such as rape. Any changes to the law should be decided in the legislature, not the courts, he said.
"This case is not a vehicle for the courts to exercise legislative judgment," Baida said.
Baida said the plaintiffs have not shown that they have suffered from criminal or civil actions because of their sexual orientation.
"This is all purely hypothetical stuff," Baida said.
But the hypothetical has Lawrence Jacobs -- one of the plaintiffs -- worried. One day he may want to be a judge. If asked whether he has ever broken the law in Maryland, Jacobs, 48, fears he will have to say yes. Jacobs -- who was once married and has a son -- ended a 13-year relationship with a man last year.
"You never know when someone is going to get elected and say, 'This law is on the books and needs to be enforced,' " Jacobs said.
The plaintiffs say that the statute is being enforced. Because sodomy is a crime, asking someone to participate also is a crime and people are being arrested, the plaintiffs say.
They point to plaintiff Doe. Adams said Doe was charged with solicitation in 1995 in Anne Arundel County after being approached by an undercover police officer. The two agreed to vTC "engage in private, consensual, noncommercial sexual intimacy," the suit says. But as they turned to go to what Doe believed was the man's home, Doe was arrested.
No sexual contact occurred, Adams said, and the case was placed on the inactive docket. The suit says Doe works in a federal government job that requires security clearance. The arrest could hurt his chances for promotion, the suit says.
Several attempts have been made to repeal the law in the legislature. One attempt came in 1987 after the U.S. Supreme Court upheld the right of Georgia to declare sodomy a crime. The ruling paved the way for states to regulate sexual conduct.
Maryland's law has survived at least four constitutional challenges. In 1990, Maryland's Court of Appeals ruled that the oral sex portion of the law does not apply to heterosexual, consenting adults. That ruling, the plaintiffs say, singled out the homosexual community.
Experts say that laws concerning sodomy vary from state to state. Most generally include prohibitions on anal and oral sex and apply to homosexuals and heterosexuals alike. They were initially put on the books, Leonard said, during the Protestant Reformation, when the laws of the church were turned into the laws of the state. Those laws were then adopted into American common law. Maryland's current law dates to 1916.
Challenges to the laws began 20 years ago, but efforts to repeal them have been stepped up in recent years.
The Washington, D.C., Council repealed the district's law that forbids sodomy between consenting adults about five years ago after years of lobbying by the gay community. According to the ACLU, 26 states have repealed their sodomy statutes -- including most recently Rhode Island.
Five states have had their statutes struck down by the courts, the ACLU said.
For Jacobs -- the Rockville plaintiff -- challenging the statutes means keeping the government out of his bedroom.
"I don't think straight people could comprehend that someone could come into your bedroom and say, 'We don't like that,' and haul you off to jail."
Pub Date: 8/26/98