Kansas Gay Activists Move To Have Unenforceable (Due To Supreme Court Ruling) Sodomy Law Repealed

A Kansas based gay activist organization is calling on their State to repeal a law criminalizing "unnatural" sexual activities. Among such activities is homosexual sex, but the law in Kansas is not limited to gay sex. In fact, oral and anal sex generally are classified as "unnatural" under the legislation. The U.S. Supreme Court's misguided Lawrence v. Texas ruling in 2003 rendered the law essentially unenforceable by declaring sodomy laws unconstitutional. That decision was foolhardy in its reasoning and in the level of abuse of the Constitution required to reach the outcome desired by a majority of the justices. In fact, it has already led to lawsuits persuasively, though of course equally absurdly, arguing under this precedent that laws criminalizing polygamy must also be thrown out.

In fact, 18 states still have sodomy laws on the books. Some legislators have argued that since the statute cannot be enforced due to a foolhardy Supreme Court ruling, the legislation is therefore not infringing upon anybody's rights. The fact of the matter is that this is a perfectly acceptable position for the legislature and governor of Kansas to take, should they so decide. Given that socially conservative Sam Brownback is the current governor, it is unlikely the law will be repealed. The fact is that if the State of Kansas wishes to retain the law, unenforced, so as to represent the moral views of that State while not impeding on the activity that is Constitutionally protected according to the Supreme Court, this would be perfectly constitutional. There is also clearly no standing to challenge an unenforceable law and therefore this law can certainly remain on the books in this fashion.

Indeed the Supreme Court in declaring Texas's sodomy law unconstitutional made note of the fact that “[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." The fact that it was rarely enforced did not stop Justice Antonin Scalia from responding in his persuasive dissent arguing the law did not violate the Constitution. Should the State wipe it from the books, that is of course their prerogative. But should they decide to leave the last symbolic vestige intact despite its substance being destroyed by a high court ruling, there is little reason they should not. Tweet