By Rudy Serra
I am a regular reader and admirer of philosopher John Corvino. He is consistently accurate, thoughtful and well-informed. Nonetheless, there was an important mistake in his recent column entitled “Growing Older, Gratefully” (Vol. 1721, Issue 613).
Corvino wrote: “I am grateful that gay sex is no longer criminal in any U.S. state…for seven years of my adult life I lived in a state where homosexual sodomy was criminal. I cried tears of gratitude when that changed, thanks to the Supreme Court’s Lawrence v. Texas decision in 2003.”
If you live in Michigan, you should keep crying.
Michigan was not included in the Lawrence v. Texas litigation. Lambda Legal Defense mistakenly concluded that the sodomy and gross indecency statutes had already been overturned by a Wayne County Circuit Court decision called MOHR v. Kelley. They disregarded the advice of local activists (including this writer). We warned them that MOHR v. Kelley was not binding in any other county, and that Judge John Murphy had refused to enjoin enforcement of the “Abominable and Detestable Crime Against Nature” or the “Gross Indecency” law.
As a result, the Michigan Standard Criminal Jury Instructions still include sodomy and gross indecency as 15 year felonies, and people have been charged and convicted under both laws here in Michigan after the 2003 U.S. Supreme Court decision.
The Standard Criminal Jury Instructions define what is a crime in every criminal jury trial. The legislature still has not repealed the sodomy and gross indecency statutes, even after Lawrence v. Texas, and ultra-conservative (“strict constructionist”) judges still continue to enforce the “legislative intent” to criminalize gay sex, regardless of what the U.S. Supreme Court says.
LGBT people in Michigan continue to be charged with crimes for public speech, in which they let another person know they are interested in private, unpaid sex with another adult. Bag-A-Fag (undercover decoy cop) operations, where police officers pretend to be gay men cruising for unpaid, consensual sex continue in Michigan. LGBT people are still at risk of spending 15 years in state prison for acts that are perfectly legal in most other states.
Most Michigan citizens, like Corvino, read the glowing news about progress in places like Iowa, Maine and Vermont, and they assume that a U.S. Supreme Court decision (like Lawrence v. Texas) reforms all the relevant laws across the nation. Unfortunately, anti-gay extremists who are prosecutors and lawyers work tirelessly to find loopholes, exceptions and limitations, even in sweeping cases with sweeping language like Lawrence v. Texas.
In Michigan, they have succeeded. The legislature has not repealed the “Abominable and Detestable Crime Against Nature” or the “Gross Indecency” law because they assume that the laws have been struck down. Since the legislature has not repealed them, conservative judges continue to enforce them.
As long as we are vulnerable to felony charges for consensual, unpaid sex with other adults, marriage equality and other goals are superfluous. Many LGBT people deny the problem because they feel that defending sex offenders is unpopular and because they buy into the majority’s hysteria over sex crimes, but our most basic, fundamental rights to liberty, privacy and intimate association are still at risk. Since criminal laws control over inconsistent civil laws, even if we had a right to get married in Michigan, conservatives would still argue that anal or oral sex between married couples was a felony. Moreover, gay men continue to have their lives ruined by lifelong sex offender registration for acts that the U.S. Supreme Court says should not be a crime. Prison costs continue to bust the budget, yet extremists continue to push for prison for “sexual predators” even in cases with no force, no payment and no minor involved.
It’s past time for LGBT organizations in Michigan to focus and prioritize. We must demand that state legislators repeal both the sodomy and the gross indecency laws. We must demand that law enforcement stop trying to apply the “solicitation” law in cases where men cruise for voluntary, unpaid sex with other consenting adults. We must replace anti-gay conservative-activist Supreme Court Justices (like Robert Young who is running for re-election next year) with judges who respect the First Amendment right of grown-ups to have public conversations about sex as well as LGBT people’s right to freely associate with one another.