An effort is afoot in the Legislature to revise Louisiana’s law books and chip away at statutes that have been declared unconstitutional and unenforceable yet remain on the books.
Republican Sen. Dan Claitor has proposed a variety of bills that would delete outdated laws, like one that caps LSU parking violation fees at $1 and another that requires teachers to present both creationism and evolution in the classroom in a balanced manner. Those two laws are not enforced.
The move to clean the books stems from a recent report by the Louisiana State Law Institute prepared at the request of the Legislature. It recommended dozens of revisions and deletions of state laws that have been deemed unconstitutional over the past several decades by court decisions.
But no bills have been proposed to accept the recommendations about revising language in state laws banning same-sex marriage, despite last year’s high-profile U.S. Supreme Court decision in Obergefell v. Hodges, which legalized gay marriage across the nation. And no bill has been submitted to repeal an unconstitutional law that criminalizes gay sex while likening it to bestiality.
In fact, the Law Institute was instructed in 2014 to make recommendations about repealing unconstitutional laws after the Legislature voted against a bill by Baton Rouge state Rep. Pat Smith, a Democrat, that would have repealed the anti-sodomy law.
Her bill drew national attention and created a storm of controversy, led in part by the Louisiana Family Forum, which urged lawmakers to leave the unenforceable law in place. The Family Forum at the time said the law was consistent with the values of Louisiana residents who considered the behavior to be “dangerous, unhealthy and immoral.”
Smith’s bill was motivated in part by a pattern of arrests in Baton Rouge, in which gay men were arrested in undercover sting operations for agreeing to have sex in private without money exchanging hands. The arrests were based on the anti-sodomy law, but the East Baton Rouge Parish district attorney ended up dropping the charges.
Smith said she has no plans for reviving her bill to remove the anti-sodomy law from the books.
“I have enough on my plate right now, so I’m not going to bring it up this year,” she said. “It got a lot of national attention, but it’s just not on my radar screen this year.”
Claitor, a Baton Rouge lawyer, said he was unable to propose a single bill adopting all of the Law Institute’s recommendations because they pertain to such wide-ranging areas of the law. So, the task has to be done individually.
“I just picked and chose various ones out of the report,” he said. “But we’re not out of time, and we’re not out of bills yet.”
Claitor said he didn’t propose killing the anti-sodomy bill because he thought Smith would be interested in reviving the issue. He said he would vote in favor of removing the law if someone proposes it.
Matt Patterson, managing director of Equality Louisiana, a group advocating gay rights, said he was disappointed the Legislature is not taking the recommendations about gay marriage and rights more seriously. But he added that it’s a “collective failure of the Legislature” and not up to just one legislator.
“I’m not going to say that the retirement statute declared unconstitutional shouldn’t also be removed, but that one isn’t sending people to prison,” Patterson said, referring to the sting operation arrests. “We have incontrovertible evidence that (the law against gay sex) is hurting people.”
Claitor has filed six bills to repeal unconstitutional statutes, and he said he may file two more.
“When we took office, we all said we’d support the Constitution,” Claitor told a legislative committee when explaining one of his bills. “This is a little effort to go in that direction.”
The laws he’s targeting are mostly noncontroversial — like one that addresses attorneys’ fees for people who sue elected officials — with the exception of the law about teaching creationism in schools.
Claitor has tried unsuccessfully to repeal this law in previous years. The Family Forum advocated against removing it.
The Balanced Treatment for Creation Science and Evolution Science Act has been on the books since 1981, but it was ruled unconstitutional by the U.S. Supreme Court in 1987. The law forbade the teaching of evolution in public schools unless it was accompanied by lessons on creationism.
Gene Mills, president of the Louisiana Family Forum, said he’s unsure if he will oppose Claitor’s bill this year. He said discussing the weaknesses of the theory of evolution and other scientific theories in the classroom is protected by the Louisiana Science Education Act, a law passed in 2008 that allows teachers to supplement their science instruction with alternative theories.
But Mills said he would actively oppose any attempts to change laws related to gay marriage or sodomy.
“History has proven that ‘unenforceable’ doesn’t mean ‘useless,’ ” Mills said. “They’re called opinions because that’s all they really are. The Supreme Court has reversed itself on more than 250 occasions.”
The Law Institute is still actively reviewing the state’s laws and expects to make more recommendations. It has been tasked with making regular reviews of Louisiana laws every two years.
Charles Weems III, an Alexandria-based lawyer who helped lead the review, said he’s hopeful the Legislature will heed the recommendations.
“The most important thing is, of course, to get bad laws off the books,” Weems said. “Lawyers and judges should know they can open the books and they will serve them well and serve the public well.”
Editor’s note: this story has been changed from the original version to reflect that the Louisiana Science Education Act does not expressly protect the discussion of Creationism in the classroom. Instead, it protects the discussion of strengths and weaknesses of any given scientific theory, by allowing teachers to supplement science instruction with theories critical of topics like evolution and global warming.
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