Gay, lesbian activists target Maryland law Plaintiffs say statute criminalizes sex lives

August 26, 1998|By Caitlin Francke | Caitlin Francke,SUN STAFF

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.

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