Sex law is under fire

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.

During the Supreme Court debate last year in Lawrence v. Texas, Utah Attorney General Mark Shurtleff filed a friend-of-the-court brief along with Alabama and South Carolina, arguing in support of the Texas sodomy law. In that brief, Shurtleff and other attorneys general argued that even if the laws were unenforceable they had "significant pedagogical value."

"Laws teach people what they should and should not do, based upon the experience of their elders," the brief stated.

However, in an affidavit filed in state court, Shurtleff acknowledged that the laws have no practical value.

"In light of the recent United States Supreme Court case of Lawrence vs. Texas, I think it is extremely unlikely any Utah prosecutor would bring a case to enforce the Utah sodomy statute, and were I consulted on the matter beforehand, I would advise the prosecutor not to bring charges."

In recent years, only two people have been convicted of sodomy.

But Barnard points to the recent case of a Tooele High School baseball player who has been charged with sodomy in a sex-abuse case involving five other team members. Washington County prosecutors charged the six members with sexual exploitation of a minor, but 18-year-old Matthew Gomez, one of two adult team members, also was charged with sodomy. Barnard said he plans to bring up the Tooele High case during Monday's oral arguments as evidence that people are still under threat of being charged.

Murphy said Shurtleff insists that the job of the justice branch is to interpret and enforce the law, and to repeal a law is a legislative task.

According to the Office of Legislative Research, there has never been a bill submitted to repeal the sodomy or fornication laws.

One law professor said he would not expect that the Utah Legislature would put such a task high on its list of priorities, even if it's clear from a legal standpoint that there is an obligation to remove a law that has been declared unconstitutional.

"In terms of the law, I don't see how (these laws) can stand after Lawrence," said University of Utah law professor Erik Luna. "I think that they should be removed. It's no longer part of the law of the land because it's inconsistent with the constitution."

Luna said the issue is not whether the laws are good or bad but whether Utah is willing to follow the high court ruling.

But sex, Luna said, can complicate things. When the U.S. Supreme Court ruled school segregation was unconstitutional under Brown v. Board of Education, there was little doubt that state laws enforcing segregation needed to be repealed. Because sex can be such a taboo subject in the United States, debate over morality has clouded the issue.

"I do appreciate that sex is a sensitive issue and that people of good conscience can disagree," Luna said, but from a legal standpoint, Utah's laws don't square with the U.S. Supreme Court ruling.

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