The American Civil Liberties Union of Idaho filed a federal lawsuit on September 23 challenging an antiquated Idaho sodomy law that has continued to target gay people, seventeen years after the U.S. Supreme Court held that laws banning same-sex activity were unconstitutional.
The nature of punishment under Idaho’s sodomy law has changed, but its destructiveness has not.
The plaintiff, known only as John Doe, was recently required to register as a sex offender under Idaho’s Crime Against Nature statute for an out-of-state conviction for oral sex that occurred more than twenty years ago. The Idaho statute criminalizes oral and anal sex—acts often associated with same-sex relationships—including instances between consenting adults.
In 2003, the U.S. Supreme Court held in Lawrence v. Texas that sodomy between consenting adults is protected under the United States Constitution’s Fourteenth Amendment. The landmark decision invalidated sodomy laws throughout the country, but Idaho, Mississippi, and South Carolina still require people convicted under those laws to register as sex offenders. Earlier this month, the Idaho Supreme Court declined to explicitly say whether the Crime Against Nature statute requires forced sex for a conviction.
“The fact that Idaho is still enforcing it shows they’re either ignorant of Lawrence or they’re malevolent,” says ACLU of Idaho Legal Director Ritchie Eppink, one of the attorneys representing Doe. Eppink says this isn’t the ACLU’s first time fighting the statute since Lawrence was decided: the civil rights group also fought it in 2013, when they sent a letter to Kootenai County Sheriff Ben Wolfinger asking him to revise department policies after publicly stating he would no longer work with the Boy Scouts of America because they promoted sodomy “in violation of state law.”
“We had to explain that the sodomy law had been struck down over ten years before,” says Eppink.
Idaho Attorney General Lawrence Wasden’s office declined to comment Thursday to The Progressive on the recent lawsuit. He was sued along with multiple other Idaho state officials.
Though sodomy laws also criminalize heterosexual sex acts, states have historically used them to prosecute gay people. In the mid-1950s in Idaho, investigators relied on the Crime Against Nature statute to prosecute allegations of sexual activity between consenting adult males in what became known as “The Boys of Boise” affair. It was “one of the most notorious gay witch hunts in American history,” Matthew Strugar, a Los Angeles civil rights attorney also representing Doe, tells The Progressive.
By the end of the two-year investigation in 1957, some 1,500 people had been questioned and fifteen men convicted for sodomy, with some receiving life sentences in prison. Among those questioned was the gay son of a Boise city councilman; this cost him his place at West Point, and he died by suicide three decades later.
Three Idaho Supreme Court opinions from the era upholding the convictions reinforced Idaho’s former anti-gay agenda. The court affirmed one defendant’s sentence on the basis that he was a “habitual, persistent homosexual offender,” and characterized his consensual sexual activity as a “crime committed against society.” It affirmed another defendant’s denial of probation because “the State made a showing of various forms of homosexual activity on the part of the accused, extending over a period of twelve or thirteen years.” Finally, the court upheld a third conviction appealed over the prosecutor’s argument “urg[ing] the jurors to enforce the law and to halt an outbreak of homosexual practices in the city.”
Sodomy laws “have historically criminalized gay lives,” Strugar says. “Justice Kennedy says the laws just being there is a harm to gay people, both historically and continually,” he added, referring to the majority opinion in Lawrence penned by the U.S. Supreme Court Justice Anthony Kennedy.
The nature of punishment under Idaho’s sodomy law has changed, but its destructiveness has not. Convicted sex offenders must turn over a slew of personal information to the Idaho Sexual Offender Registry, including name, driver’s license photo, residential address, school and employer addresses, social security number, and passport information. In his complaint, Doe says he “suffers severely under the sex offender label, which imposes a significant barrier to finding employment and participating in his community.” He’s also seeking a preliminary injunction to block the state from requiring him to register as a sex offender.
Eppink says everyone on the sexual offender registry in Idaho experiences these harms. “People already on the margins of society, with a scarlet letter on them, are being further marginalized to the point that many can’t find a place to live or work, or just generally reintegrate into society at all,” he says. “We have someone convicted over twenty years ago . . . who is now being shunned and ostracized from his community based on an unconstitutional law.”