Today my office filed yet another challenge to continuing enforcement of anti-gay sodomy laws nearly two decades after the Supreme Court invalidated such laws.
This is a challenge to South Carolina’s Buggery statute. (That’s right; the statute is titled “Buggery.”) Like other state’s sodomy laws, it appears to make it a crime to engage in oral or anal sex.
The Plaintiff, who is proceeding as a John Doe, was indicted in 2001 for engaging “in oral and anal sex.” The other man was also indicted. They both pleaded guilty.
This was the entirety of the basis for his arrest warrant:
But South Carolina requires anyone who was convicted of “Buggery” of registering as a sex offender. And it still continues to require it today, nearly two decades after the Supreme Court said such law violate the Fourteenth Amendment.
Doe was even pardoned for his so-called crime in 2006. But still, the state of South Carolina requires that he register as a sex offender.
Together with the ACLU of South Carolina, we’re challenging this entire scheme. We’re are asking the South Carolina federal court to declare the “Buggery” statute unconstitutional and the requirement that people convicted of having had oral or anal sex register as sex offenders.
This is the fourth in a series of cases my office has litigated. We’ve challenged similar laws and schemes in Mississippi and Idaho, as well as Montana’s enforcement of Idaho’s registration scheme. Mississippi, Idaho, and South Carolina are the only three state remaining that require registration for historical sodomy convictions. Hopefully this is the last case we will have to bring over this issue.
Press release below:
ACLU-SC SUES TO STRIKE DOWN LAW REQUIRING GAY MEN TO REGISTER AS SEX OFFENDERS FOR CONSENSUAL INTIMATE ACTS
In 2003, the United States Supreme Court ruled in Lawrence v. Texas that the government has no right to criminalize private intimate relationships between consenting adults. It was a watershed moment in the LGBTQ+ struggle—a legal proclamation that love isn’t criminal, and that gay people have the same right to “define one’s concept of existence, of meaning, of the universe, and of the mystery of human life,” that heterosexuals do.
In 2021—over eighteen years later—South Carolina continues to flout the clear holding of Lawrence by requiring our client, John Doe, to register as a sex offender for the “crime” of having consensual gay sex with another man in 2001. This is wrong, violates well-established constitutional law, and must be stopped. Being gay isn’t a crime, and having gay sex isn’t a sex offense. Enough is enough.
“South Carolina is the last state in the country to require sex offender registration for pre-Lawrence sodomy convictions,” writes Allen Chaney, ACLU-SC’s Legal Director. “This practice needlessly subjects law abiding citizens to the horrors of the sex offender registry and demonstrates a deeply troubling animosity by the State towards the gay community.”
“It is unconscionable that in 2021, South Carolina would still put people convicted of having gay sex on the sex offender registry,” said Matthew Strugar. “This kind of overt, state-sanctioned homophobia would have been surprising 30 years ago. Today it is shocking. And it is unconstitutional.”