News 69

Okay...I'm not a lawyer, but I will state what I believe to be the case. There may be small exceptions to some of this here and there...but it should be generally correct:

Consensual sodomy is now legal. Any laws that existed have been, in essence, overturned by the Supreme Court decision--Lawrence v. Texas. If any laws about consensual sodomy are still on the books in any state, they are unenforceable and meaningless. If the Supreme Court finds things unconstitutional, then neither the states nor the federal government can pass a law in those regards and have any hope of that law not being thrown out in a trial. If enough time has passed, and the Supreme Court's make-up has changed, sometimes states will pass laws that go against a prior Supreme Court ruling. These are to challenge the prior Court's ruling in hopes of getting the new Supreme Court to overturn the prior Supreme Court--sometimes this works, often it doesn't. This, of course, hasn't happened (yet?) with Lawrence v. Texas, as the make-up of the Court hasn't changed substantially and no state has tried to challenge the ruling.

The Supreme Court has the final say on matters of constitutionality--which were the grounds for invalidating sodomy laws. The Constitution generally applies to state and federal laws--hence, the Supreme Court is generally the final arbiter of the federal Constitution at both levels of government, and the federal Constitution is generally the supreme law of the land, over-riding all others.

In terms of some of the other questions, there are state issues and federal issues--on some issues there are laws by both. At times, the federal and state laws contradict one another (i.e., medical marijuana). To my knowledge, consensual sodomy has always been a state issue. As such, each state decides whether to have such a law and what falls under the definition of sodomy in that particular state. Hence, you get different states with different laws that include different things. Because of the Supreme Court decision, any consensual sodomy laws are null and void--whether they are still on the books or not.

The Supreme Court doesn't make laws, but--instead--it determines whether laws are constitutional or not. If a law is found unconstitutional, it can't be enforced / enacted. The Supreme Court determines what you can't have as a law, but it doesn't write laws itself--that's the job of the federal and state legislatures, etc.

If you are still hearing about the enforcement and successful prosecution of sodomy laws in the U.S., this is likely to be sodomy of the NON-consensual variety. These laws, to my knowledge, were unaffected by Lawrence v. Texas b/c of their non-consensual nature.

Obscenity is currently defined by the Miller Test--from the Supreme Court--and deals with actual material that is produced. If no tangible product is produced--written, filmed, photographed, etc.--then it seems highly improbable that one could be prosecuted for obscenity (i.e., for acts that one does privately with someone else ...read more ( last updated Oct 31 2009 1:37PM)