The Supreme Court’s decision to overturn a woman’s right to choose is a reminder that state and local penal codes, rendered moot by court rulings, in many cases were never cleaned out. These dead laws just sat there collecting dust, presumably never to be heard of again.

What the Supreme Court ruling in the overturn of Roe v. Wade highlights is that laws on the books are never entirely dead. Michigan, West Virginia, and Wisconsin all have old laws on the books banning abortion pre-dating the original Roe v. Wade decision in 1972. The states never got around to removing the laws and now are grappling with the possibility that the laws, dating back to 1882 in West Virginia’s case, will once again take effect.

While rendered moot by Lawrence v. Texas and later Obergefell v. Hodges, two particularly dangerous such legal precedents are still on the books in North Carolina.

Sexual Activity

North Carolina’s “sodomy law” comes in the form of Gen. Stat. Section 14-177 and the legislation is directly traceable to an English law passed in the year 1533 during the reign of King Henry VIII, which referenced the “detestable and abominable vice of buggery.” It was passed into law in 1837, with one important difference. The persons drawing the statute found the word “buggery” too offensive to even read, so it was reworded to read as follows: “Any person who shall commit the abominable and detestable crime against nature, not to be named among Christians, with either mankind or beast, shall be adjudged guilty of a felony, and shall suffer death without the benefit of clergy.” 

Of course, the words and punishment changed as time passed – execution was phased out and punishment lessened – but as late as 2014, a person found guilty was charged with a Class I felony when committing a “crime against nature.” 

Because the constant rewording of the language left the definition vague, the UNC School of Government looked at the case law in 2011 to determine what the statute specifically identified as a “crime against nature” and released the following determinations: giving or receiving fellatio, cunnilingus, annalingus, inserting a sexual organ into the anus of another male or female or an object into a person’s genital opening.

As of 2020, the aforementioned sex acts are still considered “crimes against nature.” However, in 2003, the U.S. Supreme Court ruled that sodomy laws were unconstitutional, arguing that consenting adults can engage in oral and anal sex, when performed in private, without facing criminal penalties.

Marriage

On September 12, 2011, the North Carolina House of Representatives voted 75–42 in favor of North Carolina Amendment 1, a constitutional amendment banning same-sex marriage and any “domestic legal union.” On September 13, 2011, the North Carolina State Senate voted 30–16 in favor of the bill. On May 8, 2012, North Carolina voters approved of the amendment by a vote of 61.04 percent to 38.96 percent. The amendment added to Section XIV of the Constitution of North Carolina reads as follows:

“Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

North Carolina was the 30th state, and the last of the former Confederate states, to adopt a constitutional amendment defining marriage to exclude same-sex couples. 

Preparing for the future

Stepping backwards in time is a prospect LGBTQ residents of North Carolina and many states across the country might face if the Court decides to revisit any of the rights it had previously ensured. Given Clarence Thomas’ open invitation to correct “the error” that led to marriage equality, and the end of sodomy laws, that’s not a remote possibility.

These laws and constitutional bans are ticking time bombs waiting to go off in the event that the Supreme Court takes its reasoning in Dobbs v. Jackson Women’s Health Organization to its logical conclusion. Indeed, in their dissent, the three liberal justices warned that the conservatives weren’t done with the damage they intend to cause.

While Thomas said that the ruling opened the door to other cases, the other justices in the majority tried to downplay that idea. Stephen Breyer, Elena Kagan, and Sonia Sotomayor would have none of it.

“Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat,” the dissenting justices wrote. “It is one or the other.”

In the meantime, the right-wing has a passive ally in moot–at least for now–laws that are still on the books. These laws are waiting in the wings to come back into full force should the right’s fantasy of eviscerating LGBTQ progress comes to fruition thanks to the ideologues on the Court.

During the fight for marriage equality, some 30 states passed constitutional amendments banning same-sex marriage in some form or another. Nevada voters repealed theirs in 2020. The rest are still on the books. There are also dozens of laws banning marriage equality as well.

Some states, like Virginia, have taken steps to strike those from the books, but Republicans have blocked efforts to repeal the constitutional amendment. Legislators in other states have tried for years to get laws removed, but again failed in the face of GOP opposition.

It’s a similar situation with sodomy laws. More than a dozen states still have laws on the books banning sodomy. The laws generally prohibit oral or anal sex between adults, and while most of them apply to straight people as well, historically they have been used to target LGBTQ people.

Last week’s ruling made it clear that there’s no such thing as a secure right as long as the right-wing justices control the Court. If it seems far-fetched to consider the Court overturning tens of thousands of marriages, just consider the confirmation hearings for Breyer’s replacement, Ketanji Brown Jackson.

Republican Senators repeatedly pressed Jackson for her views about “unenumerated rights” like marriage equality. The clear message was that these rights were illegitimate. Given that the conservative justices on the Court are virtually indistinguishable from the GOP policy line – indeed, they were chosen for that very reason — there’s every reason to believe that they are thinking the same thing.

For the longest time, the fear was that the Court would slowly poke holes in LGBTQ rights by carving out broad exceptions based on a religious liberty argument. After Dobbs, it’s just as easy for them to cut right to the finish and eliminate the rights altogether. That’s the end game. As they’ve shown with abortion, why wait if you have the power to impose your views now?

This article appears courtesy our media partner LGBTQ Nation. North Carolina specific material added by Qnotes.

Leave a comment

Your email address will not be published.