Judge dismisses suit over Utah sodomy laws

A Third District judge has dismissed a challenge to Utah's sodomy and fornication laws saying the plaintiff has no grounds to bring the suit.

D. Berg's claims that he fears future criminal prosecution for having admitted to breaking both laws are "insufficient," Judge L.A. Dever wrote in his opinion, which was filed on Thursday. A plaintiff facing criminal charges would have greater standing, Dever said.

"Berg has not suffered an injury in the past, is not currently suffering and is not likely to suffer an injury in the future," the judge said.

Berg's attorney, Brian Barnard, said Saturday he will appeal the ruling to the Utah Supreme Court.

Barnard filed the suit in June, one day after the U.S. Supreme Court struck down a Texas ban on gay sex, saying the law was unconstitutional. The decision rendered sodomy laws in 12 other states unenforceable.

Thirteen states have sodomy laws on the books, four of which specifically ban consensual sodomy between same-sex partners. The remaining nine states, including Utah, ban sodomy for everyone, although the Utah law exempts married persons.

Dever said the issues raised by Berg's suit would be better addressed by the Utah Legislature.

Barnard called Dever's deference to lawmakers "troublesome."

"The Utah Legislature has shown itself to lack an understanding of constitutional rights," Barnard said in a written statement. "Our lawmakers are unwilling to protect the interests (including privacy) of citizens outside the Legislature's conception of the mainstream."

In the past, lawmakers have discussed — but never repealed — Utah statues against sodomy, fornication and adultery.

State sodomy laws have been previously challenged in both state and federal courts. One of those is currently pending before the 10th Circuit Court of Appeals in Denver.

A Utah County man, represented by Barnard, filed a federal lawsuit last year to challenge the constitutionality of the law, which criminalizes heterosexual sodomy, including oral sex. U.S. District Judge Dale A. Kimball dismissed the case, saying the man lacked standing because he had not been charged with a class B misdemeanor for violating the law. Barnard appealed to the 10th Circuit.

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E-mail: jdobner@desnews.com