One of the latest legal challenges facing the state of Idaho is over its continued enforcement, in some respects, of a law deemed unconstitutional by the U.S. Supreme Court nearly 20 years ago. But the largely obsolete legal code has deep roots here – and across the country – that still ripple through society.
The ACLU of Idaho filed the suit last year on behalf of two men convicted under the “infamous crime against nature” law, or one similar to it in another state, who want to scrub it from state code entirely.
Idaho’s law criminalizes anal and oral sex – historically including consensual sex – since even before the state’s founding.
As of December, 41 people were forced to register as a sex offender in Idaho for committing an “infamous crime against nature.” That means they’re restricted on where they can live, what jobs they can hold and all of their information is available to the public.
From its first days as a territory, legislators in Lewiston in 1863 and 1864 adopted the area’s first set of criminal laws, including an “infamous crimes against nature” statute. Penalties included at least five years in prison, up to life.
“They were basing it largely off of the common law and that was an English transport, and by common law, what we mean is judge-made law,” said Sam Newton, a law professor and historian at University of Idaho College of Law.
Charles Altwatter, who had been in and out of the state penitentiary in Boise for various crimes, was among the first men who challenged the statute.
He’d been imprisoned on a sodomy conviction in Shoshone County in 1915. But Altwatter argued he’d only engaged in oral sex, which wasn’t specifically defined in Idaho code or typically included under the traditional definition of sodomy.
The state Supreme Court rejected that argument unanimously in a scathing decision, calling it “one of the most heinous and unspeakable forms of crime.”
“We feel disposed to follow the more modern decisions, which we think are better reasoned and in keeping with the progress of civilization,” the opinion reads.
"After the 1890s, it starts becoming inverts, later homosexuals, degenerates and they start being [criminally] reported that way." -William Eskridge
The origin of these American laws starts nearly 500 years ago when the Reformation Parliament under English King Henry VIII passed the Buggery Act of 1533. It made anal sex and bestiality punishable by death, which later inspired similar laws as the American colonies began taking shape.
These laws eventually were used to punish the LGBTQ community, but they weren’t originally designed that way. It was to prevent sex outside of marriage. They also didn’t really apply to lesbians for many, many years, according toWilliam Eskridge, a Yale law professor whose book, Dishonorable Passions, chronicles the history of American sodomy laws.
“That’s what sodomy laws were all about, the religious and secular idea that if you wanted to have sexual pleasure, it had to be conjugality within a traditional marriage,” Eskridge said.
Relatively few people were actually prosecuted under these laws if the sex was consensual because there were generally no other witnesses, he said. They were also used as secondary laws to prosecute child molesters and rapists.
After the colonies won their independence from Great Britain and began shaping their own societies, nearly all of them revoked the death penalty for sodomy until the early 19th century, according to Eskridge.
Again, enforcement during this time wasn’t very common.
He cites historian Jonathan Ned Katz, who found just 105 cases in the 1800s, which mostly dealt with rape or bestiality.
But Eskridge said all of that started to change as religiosity rose among Americans and attitudes shifted towards condemning consenting, gay adults in the late 19th century.
“After the 1890s, it starts becoming inverts, later homosexuals, degenerates and they start being [criminally] reported that way,” he said.
After Charles Altwatter, the Idaho man who lost his appeal to the state Supreme Court in 1916, further cases of people being convicted under Idaho’s sodomy law continued.
"It’s just a couple of sons of bitches doing evil things like out of Macbeth." - Former U.S. Sen. Alan Simpson of Wyoming
Then in the '50s came the Boys of Boise scandal that convicted some men of consensual sex with adults alongside those convicted of sexually assaulting teenagers. The incident alone, and its fallout, deserves its own story.
But the scandal didn’t happen in a vacuum. The 1950s saw the persecution of the LGBTQ community in the U.S. kick into high gear as the Cold War iced over the country.
The federal government, whipped into a frenzy by Wisconsin Sen. Joseph McCarthy (R) and others, demanded agencies purge and blackball those even accused of being gayas part of what’s now known as the Lavender Scare.
McCarthy loyalists, including Idaho Sen. Herman Welker (R),threatened to use the arrest of Wyoming Sen. Lester Hunt (D)’s son for soliciting an undercover male officer against him.
Hunt later committed suicide in his office in 1954.
Former Wyoming Sen. Alan Simpson (R), who eventually occupied Hunt’s seat, blasted those threats in the Yahoo News documentary https://vimeo.com/367569830" target="_blank">Uniquely Nasty: The U.S. Government’s War on Gays.
“It’s just a couple of sons of bitches doing evil things like out of Macbeth,” Simpson said.
But there was a glimmer of hope for this bleak period in the lives of the LGBTQ community, even though it would take nearly another 50 years before it would come to pass nationwide.
In 1955, the American Law Institute voted to decriminalize consensual anal sex between adults as part of its movement to standardize criminal laws across the country with the Model Penal Code project.
It aims to streamline the country’s patchwork of laws that differ state to state, county to county and even city to city.
Newton, the University of Idaho law professor, said this is partially due to state lawmakers trying to react to high profile cases flagged for them by constituents.
"The Model Penal Code is a response to that kind of overreaction to say, ‘Maybe we should standardize the criminal law and really fix a lot of problems that are happening,’” he said.
Idaho was one of the first states to join the Model Penal Code movement in the early ‘70s. But after lawmakers found out they had repealed so-called morality laws, pressure from religious groups led to legislators quickly reinstating them, while other states worked toward decriminalizing them.
All of this ultimately led to the 1986 U.S. Supreme Court case, Bowers v. Hardwick out of Georgia. In a 5-4 decision, the court said gay people had no fundamental constitutional right to engage in sodomy. The reasoning by the majority was because it didn’t want to wade into “judge-made” law that’s not specifically spelled out in the Constitution.
It would take nearly two more decades for another case like this to reach the high court.
Suzanne Goldberg was sitting in her office at the LGBTQ law organization, Lambda Legal, when she got a call from a colleague in Houston telling her the news: two men had been charged for having consensual sex under Texas law.
“This was this was one of the important cases of our lifetime to challenge the states’ power to criminalize the lives of lesbians and gay men,” Goldberg recalled.
Would she be willing to help?
“Of course, we said yes.”
Goldberg, who now teaches at Columbia Law School, said she saw an opening.
She said attitudes had changed since the Bowers decision in the ‘80s. It led to more gay rights protests and people coming out of the closet to friends and family.
“All of that helped America and members of the court see gay people as neighbors, as human beings with full dignity,” Goldberg said.
But there were setbacks to the movement during this time, like President Bill Clinton’s enactment of the Don’t Ask, Don’t Tell law that forbade military members from asking about or discussing each other's sexual preferences.
Eventually, the Supreme Court took up her case, Lawrence v. Texas. In a 6-3 decision in 2003, Justice Anthony Kennedy would rebuke the court’s previous decision in Bowers v. Hardwick that allowed such bans on sex between consenting adults.
“Their penalties and purposes … have more far-reaching consequences touching upon the most private human conduct, sexual behavior, and in the most private of places, the home,” Kennedy said.
In his dissent, Justice Antonin Scalia remarked on the direction the Court was taking – toward what he viewed as a path of illegitimacy in the eyes of the public that the majority in the Bowers decision feared.
“It is clear from this that the Court has taken sides in the culture war – and in particular in that battle of the culture war that concerns whether there should be any moral opprobrium attached to homosexual conduct,” Scalia said.
LGBTQ rights groups hailed the new Lawrence decision as a significant step towards the legal acceptance of gay people across the country, something they would build upon for years to come.
But now, almost 20 years removed from that case, there are still 14 states that have consensual sodomy laws on the books, including Idaho. Laws in Kansas and Texas single out people who are gay – heterosexual couples aren’t included in their existing criminal codes.
Some have argued it’s a useful tool in sexual assault or rape cases, which can be difficult to prove at trial, or they can be used in a way to prosecute crimes against minors.
Goldberg said she understands those arguments.
“But we live in a system of laws and we live in a system of equal justice and we cannot have a set of laws that says, ‘Well, we’re going to prosecute some people for consensual sex, but not others.’”
In some ways, Idaho is still enforcing its sodomy law. As of December, 41 people are still on the state’s sex offender registry for violating these laws, according to Idaho State Police – 21 of them in-state and another 20 who were convicted out-of-state.
The registry is a lifetime requirement that limits where they can live and what jobs they can hold, though it’s possible to petition a judge to expunge their record after 10 years in some instances.
The ACLU of Idaho is suing the state in federal court on behalf of an anonymous man, as well as Randall Menges. Menges was convicted in 1994 for having oral sex with two 16-year-old boys shortly after he turned 18 – something that would not meet the definition of statutory rape today.
Lawyers for Menges said the encounters were consensual. A written statement at the time from one of the boys in a police report said no force was involved, as did a contemporaneous statement from Menges.
He’s still labeled a “violent sexual predator” – something state officials point out in their motion to dismiss the lawsuit – despite the fact thatIdaho was forced to abandon the label after the state Supreme Court ruled the process unconstitutional because it “minimize[d], at every turn, the possibility that an offender has the constitutionally required notice and opportunity to be heard.”
The Idaho Supreme Court also pointed out in that decision that the “violent sexual predator” label didn’t reflect whether a person used violence in the commission of that crime, or whether they posed a risk of using force in the commission of future crimes.
In its motion to dismiss the lawsuit, the state attorney general’s office said the Supreme Court’s opinion in Lawrence v. Texas doesn’t bar these kinds of laws when it involves minors or if there’s a lack of consent. Plus, state attorneys said, there’s a process by which some who are on the registry can follow to be removed.
The case remains ongoing.
Editor's note: An audio version of this story incorrectly stated that all but one man involved in the Boys of Boise scandal went to prison. All but one man was convicted, though some received sentences of probation.
Follow James Dawson on Twitter @RadioDawson for more local news.
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