Back in 2003, the Supreme Court ruled in Lawrence v. Texas that it's unconstitutional to ban sodomy. At the time, this was considered a huge gay rights victory, even though there weren't many states at that point which had those laws. It rendered unenforceable one more facet of anti-gay discrimination and it reversed the bad law that was made by the 1986 decision Bowers v. Hardwick. In that case, the Supreme Court upheld the constitutionality of a sodomy law as used in a case where police arrested a gay couple for sodomy in the privacy of their own home.
In overruling the case, Justice Kennedy remarked forcefully that "Bowers was not correct when it was decided, and it is not correct today."
Sodomy laws are yet another way to infringe on the personal liberties of LGBT Americans. For the longest time, our right to free association did not exist. We couldn't even congregate in bars if we wanted. We were at risk of sting operations and bar raids, among other things. The goal was ostensibly to police "morals" in society, but the state has always served to terrorize gays, to keep us in the closet and out of public life. In the 70s, there was even the "Save Our Children" campaign to keep gays from teaching in schools. That's still considered a valid idea to some politicians to this day. So it is not surprising, with that in mind, that some states are still trying to prolong state sponsored terrorism against gays:
State Representatives Jan Pauls (D, Hutchinson), and Lance Kinzer (R, Olathe) said yesterday that being gay or lesbian should remain a crime in Kansas. Pauls made, with Kinzer’s support, the successful motion in the Kansas Legislature’s Corrections and Juvenile Justice Committee to keep the criminalization of gay and lesbian relationships on the books.
This law is unenforceable in court. It has been ruled unconstitutional and anyone who actually brings it to trial would either be laughed out of court or cited for frivolousness. But that's not the point of the law. States have been using laws of that sort to arrest, or threaten with arrest, gays who dare to be open. Gays would have to go through the public humiliation of being hauled off in handcuffs. They'd have to deal with people talking about their arrest for sodomy. Maybe their arrest would even be reported. Even if an arrest isn't made, the threat of arrest and public humiliation for sodomy is enough to scare gays, who are obviously a small and oppressed minority. These laws do not defend "morals" or note objections to the Supreme Court decision or anything of the sort. They promote terrorism by state governments. They give officials and policemen the tools to harass law-abiding gays any time they want.
As the article notes, Justice Kennedy was very aware of this fact:
Although one remains on Kansas’ books, all state laws criminalizing gay and lesbian relationships were struck down by the United States Supreme Court in 2003. Writing for the majority in the case of Lawrence v. Texas, Justice Anthony Kennedy said “if protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”
This is a natural and expected result of sodomy laws - which is precisely why they were ruled unconstitutional in the first place. That states are still using it to stigmatize gays is a horrendous breach of government trust. They can't expect their citizens to believe they'll be treated fairly when it is state policy to enforce terrorism against a minority - even going as far as using unconstitutional means to do so. Who do they have to answer to? They just do what they want when they want.
...the law is unenforceable and no one is being harmed by it.
That... is nothing more than a sick joke. It is 'technically' correct, sure, but its intent is simply not to enforce the law by trying citizens for sodomy. Its intent is to terrorize. Otherwise, if it is unenforceable and no one is being harmed by it, why not take it off the books? Why not leave no doubt as to its uselessness? There is no need to keep it.
Unsurprisingly, even the Texas statute at issue in the 2003 Supreme Court case is still on the books:
In Texas, section 21.06 of the Texas Penal Code, better known as the sodomy law, also remains on the books.
In North Carolina, in fact, the state did go as far as to charge someone with sodomy in an attempt to terrorize them and the larger gay community:
Raleigh police are charging two adults for sodomy in private, although the U.S. Supreme Court appears to have outlawed such charges five years ago.
Police on Saturday charged two West Raleigh men with a "crime against nature" for having sex early that morning. Each faces up to two years in prison if convicted of the Class I felony.
The article notes that it's about consensual sex. And that the law in question is still on the books and may be unenforceable. They even suggested that the DA would probably not even do anything:
"This looks like a case of a consensual act that may have gotten out of hand," said Raleigh police Capt. T.D. Hardy. "The law is still on the books. Our detectives got involved in it last night and decided this was the best thing to do. What the D.A.'s office will do with it, I don't know."
And yet it's politically difficult to get this unconstitutional and unenforceable law off the books there. And they, along with Kansas and Texas, think since the law is unconstitutional, it's not a big deal. Nothing to see here, move along:
State Sen. Ellie Kinnaird, a Carrboro Democrat and attorney, has tried for years to rescind the state statute, but the General Assembly hasn't been willing to do it.
"I press it every year," she said Saturday. "It would be politically difficult, but that doesn't matter -- it's unconstitutional."
It's a strange thing to read, in an article about just how much the law does matter because the state is using it to terrorize gays. It's really uncomfortable to know that all these state legislatures want to make sure their states keep this possibility alive.
Louisiana is another state with a law like this still on the books:
But as a federal civil rights lawsuit filed this week in Louisiana illustrates, [excitement over Lawrence v. Texas may have been hasty. Louisiana's own archaic sodomy law is having a devastating effect on hundreds of people - principally low income women of color, including transgender women.
Note that this article is from this year. The sodomy law in Louisiana is particularly egregious because not only do they have to deal with the basic idea of harassment and humiliation because the state is using it as a means to inflict terrorism on gays, but under that law, you have to register as a sex offender if convicted:
The lawsuit doesn't argue that Louisiana can't criminalize sex work. But it does challenge the fact that a Crime Against Nature by Solicitation conviction brands you as a sex offender simply because it involves oral or anal, rather than vaginal, sex. That irrational distinction, the lawsuit contends, violates basic constitutional equal protection principles and constitutes cruel and unusual punishment.
They must carry a state driver's license and identification card which features the words "SEX OFFENDER" printed in bright orange capital letters. They have had to send postcards to neighbors, schools, parks, community centers, and churches announcing themselves as sex offenders and disclosing their names and addresses. Their photographs, names, and addresses also appear on the online sex offender registry.
Some of the women who have joined this lawsuit as plaintiffs have been denied access to homeless shelters and drug treatment because those facilities won't accept sex offenders. As one woman explained: "When I call about a job, I have to ask if they will hire sex offenders." The answer is generally predictable. And as another woman pointed out: "When you mail those cards it's so humiliating. People kill you for that." More than one person has said that they fear for their safety.
This state-sanctioned terrorism needs to stop.