Sex law is under fire

Although the U.S. Supreme Court has ruled state laws criminalizing sodomy are unconstitutional, legal experts don't expect Utah's sodomy laws to be taken off the books anytime soon.

For 15 years, attorney Brian Barnard says he has tried at least seven times to get the state out of the bedroom, without success. On Monday, Barnard will give his arguments before the Utah Court of Appeals on his latest attempt. But with a U.S. Supreme Court ruling striking down the sodomy law in Texas, Barnard is hopeful.

"Sodomy statutes stigmatize and brand people as criminals," Barnard said.

In June 2003, the high court ruled criminalization of sodomy, gay or straight, unconstitutional. The ruling rendered many such laws in various states unenforceable.

Thirteen states have sodomy laws, four of which specifically criminalize same-sex relations. The other nine states, including Utah, ban sodomy regardless of sexual orientation. In 1977, the Utah Legislature amended the sodomy statute to exempt married couples.

Paul Murphy, spokesman for the Utah Attorney General's Office, said the matter is one for the Legislature to decide.

"This is about standing, and the courts have ruled in the past that Brian Barnard's cases have no standing," Murphy said. "It becomes the Legislature's decision to take that off the books."

Last year, a U.S. District Court judge dismissed Barnard's challenge in federal court, finding that his client lacked standing because his client had not actually been prosecuted under Utah's sodomy statute.

"We then filed in state court because the requirements for standing is lower," Barnard said.

Barnard said his current client, D. Berg, fears prosecution for having sexual relationships that are "heterosexual in nature" outside of marriage. Although morality can be debated, Barnard argues in his suit that the sexual act is "a direct and effective method of communicating love, affection, feelings and emotion."

Last October, a 3rd District judge dismissed D. Berg's claims, ruling that D. Berg had not suffered any injury, nor is likely to suffer any injury, to bring such a challenge.

Judge L.A. Dever ruled that a change in the statutes of sodomy and fornication is a job best suited for the Utah Legislature.

Murphy pointed out that in addition to the $1 in damages sought by the suit, Barnard is seeking legal fees. "This isn't about the Constitution, this is about money . . . If it's truly his concern, he should be going to the Legislature."

Barnard said there is little chance that the state Legislature would ever submit a bill to take such laws off the books. He believes that state officials want to keep the sodomy and fornication statutes in place, even if they have been deemed unconstitutional.